Taylor v. King

• Decision Date: 06 October 1961
• Docket Number: No. 3,No. 39047,39047,3
• Citation: 104 Ga.App. 589,122 S.E.2d 265
• Parties: S. E. TAYLOR v. J. A. KING et al
• Court: Georgia Court of Appeals

Page 265

122 S.E.2d 265

104 Ga.App. 589

S. E. TAYLOR v. J. A. KING et al.

No. 39047.

Court of Appeals of Georgia, Division No. 3.

Oct. 6, 1961.

Syllabus by the Court

(1) Where there is only one cause of action, a notice given a municipality setting out the time and place of the occurrence, the extent and nature of the injury, to whom occasioned, and the negligence which allegedly caused the injury is a sufficient 'substantial compliance' with Code § 69-308, as amended, although it may have been given by one other than plaintiff in the present suit.

(2) The operation of a municipal airport when portions of the same are leased for 'substantial revenue' is a ministerial or proprietary function of the city. Hence, a municipality is not immune from liability resulting from its negligence in the maintenance and operation thereof.

(3) If a defendant is chargeable with any act of negligence alleged in the petition, his general demurrer should be overruled.

S. E. Taylor, doing business as Taylor Sand Co. (plaintiff hereinafter) filed suit against the City of Columbus (defendant city hereinafter) and John A. King (defendant King hereinafter) for property damage to his airplane and loss of use of the plane. The incident is alleged to have happened when plaintiff's plane ran into a hole after he had been instructed by an airport employee to taxi around an accumulation of water on one of the runways. The defendant King is the city-appointed manager of the airport.

Both defendants filed general demurrers to the petition and the trial judge sustained the demurrer as to both. Error is assigned by plaintiff on this ruling.

Marilyn W. Carney, Vincent P. McCauley, Columbus, for plaintiff in error.

Thompson & Redmond, Davis & Davis, Lennie F. Davis, Lee R. Redmond, Jr., Columbus, for defendants in error.

EBERHARDT, Judge.

This case involves the following factors, viz. (1) Was the notice given the defendant city sufficient under Code § 69-308, as amended? (2) If so, was the defendant city exercising a ministerial function under these facts? and (3) Is the defendant King, the airport manager, personally liable? These points will be considered in the above order.

1. The plaintiff attached a copy of a letter to his petition which he contends was sufficient notice to the defendant city. The letter was sent to the Mayor of Columbus and set forth the details of the occurrence including the alleged negligence of the defendant city. However, the letter was sent by the insurance carrier for the plaintiff and the amount specified was less than the damages claimed in the petition.

The applicable law is contained in Code § 69-308 (as amended, Ga.L.1953, Nov.-Dec. Sess., p. 338; Ga.L.1956, p. 183) which provides in part: 'No person, firm or corporation, having a claim for money damages against any municipal corporation on account of injuries to person or property, shall bring any suit at law or equity against said municipal corporation for the same, without first, and within six months of the happening of the event upon which such claim is predicated, presenting in writing such claim to the governing authority of said municipality for adjustment, stating the time, place, and extent of such injury, as nearly as practicable, and the negligence which caused the same, and no such suit shall be entertained by the court against such municipality until the cause of action therein shall have been first presented to said governing authority, for adjustment * * *'

It has been held many times that a substantial compliance with this section is all that is necessary, the purpose of the notice requirement being to apprize the city of the claim in order that it may determine whether or not to adjust the claim without suit. Code Ann. § 69-308, catchword 'Substantial Compliance.' The variation in amounts claimed is immaterial. City of Griffin v. Stewart, 19 Ga.App. 817, 819, 92 S.E. 400; Williamson v. Mayor, etc., of City of Savannah, 19 Ga.App. 784, 92 S.E. 291.

The defendant city relies on the case of Jones v. City Council of Augusta, 100 Ga.App. 268, 110 S.E.2d 691, wherein it is held that notice of a claim by the parents does not constitute notice of a claim by a child. This ruling is based on the fact that there were two different causes of action, i. e., one for the child and one for the parents. This is not the situation here as there was only one cause of action. Therefore, the Jones case is distinguishable on its facts.

Furthermore, as was said in that case at page 270 of 100 Ga.App., at page 693 of 110 S.E.2d: 'The notice must be given by somebody. The Code does not specify who shall give it.' We thus hold that it was not necessary that the notice be given by plaintiff himself. The notice given the defendant city here was a substantial compliance with the Code.

2. Next we have the question of whether the defendant city was engaged in a ministerial or a governmental function in the operation of this airport. The plaintiff's allegations are: '5. That the city leased space at this airport to private companies engaged in commercial operations for profit; that the revenues thereby obtained are substantial, and not incidental revenue, and that said airport is operated by the city as a source of revenue. 6. That the city by lease agreement with the private enterprises therein covenants to maintain runways and thus undertakes...