Stubbs v. City of MacOn , 78 Ga. App. 237 ( 1948 )

1. Municipalities are liable for the acts of their officers, agents, and servants only in instances as follows: (a) In the performance of any function where a statute specifically provides for such liability (see specific statutes). (b) For neglect to perform or improper or unskilful performance of their ministerial duties (see Code, § 69-301). (c) For the performance of their governmental functions where the same amounts to the taking or damaging of private property for public purposes without first making adequate compensation therefor (see art. I, sec. III, par. I of the Constitution, Code, Ann., § 2-301), or the creation of a nuisance dangerous to the life and health of persons because of its proximity to them in the enjoyment of their property. See Kersey v. Atlanta, 193 Ga. 862 (20 S.E.2d 245, 140 A.L.R. 1352), and cases there cited.

2. (a) In the absence of charter authority to the contrary, the maintenance of a park by a municipality is a governmental function, and the municipality is not liable for the non-performance or improper performance of its officers, agents, or servants in connection therewith. See Code (Ann.), § 69-301, and cases cited under catchword "Parks"; Harvey v. Savannah, 59 Ga. App. 12 (199 S.E. 653).

(b) The operation of parking meters on the streets of a municipality with charter powers sufficiently broad to invest it with the general supervision and control over its streets is a governmental function. See Gardner v. Brunswick, 197 Ga. 167(2) (28 S.E.2d 135).

3. The paving of a walkway along the outer edge of a city park but within the park, by the municipality in connection with the installation of automobile parking meters, so as to leave a water meter projecting above the surface of the paved walkway in a manner dangerous to pedestrians using the walkway, amounts to a governmental function in connection with the construction and maintenance of a city park; and the water meter thus situated is not such a nuisance as amounts to the taking or damaging of private property for public purposes without first making adequate compensation therefor. The fact that the area is also used in connection with parking meters providing revenue for the city does not make the function ministerial, this function also being governmental.

4. The petition in the instant case shows that the municipality was engaged in the operation of a city park, and in the operation of its parking meters, both governmental functions, in connection with the injury of the plaintiff; and that the conduct of its officers, agents, and servants was not such as to amount to the taking or damaging of private property for public purposes without first making adequate compensation therefor; nor is such a nuisance alleged as was dangerous to the life and health of persons because of its proximity to them in the enjoyment of their property. Therefore the judgment of the trial court sustaining the demurrer to the petition is without error.

Judgment affirmed. MacIntyre, P.J., and Gardner, J., concur.

DECIDED DECEMBER 4, 1948. Mrs. E. N. Stubbs, hereinafter referred to as the plaintiff, brought suit for damages in the City Court of Macon against City of Macon, hereinafter referred to as the defendant.

The petition alleges substantially: that Third Street runs north and south; that from the east to the west side thereof is 134 feet in distance, 37 feet of which is paved for vehicular traffic on the west side, and a like width of pavement is for vehicular traffic on the east side; that between these two paved areas there is a space of 60 feet, which is operated by the defendant as a city park; that, in the year 1947, agents of the defendant installed parking meters throughout the city including the area of Third Street adjacent to the park described in the petition; that the parking meters at this point were located inside the park in the center of a concrete strip 3 feet in width; that this strip of pavement was put down in connection with the location of the parking meters; that the city receives substantial revenue from the operation of the parking meters; that a metal water-meter box was in the path of this pavement at a point in the park opposite the store of J. C. Penny Company; that this meter box was not lowered to the level of the pavement, but was "paved around" so as to remain elevated a distance of approximately 7 inches above the level of the pavement at the highest point; that the plaintiff, an employee of J. C. Penny Company, parked her car along the park in front of and opposite the store of J. C. Penny Company headed north, and alighted by way of the right-hand door; that approximately 3 hours later she returned to her car by crossing a portion of Third Street, entering the park area, and upon starting to get into her car by way of the left-hand door, she stumbled over the water-meter box, causing her to fall; and that she suffered serious injuries and incurred medical expense, all of which is detailed in her petition.

The petition also alleges notice to the city in writing of the character of the complaint, and prays for process and judgment in the sum of $5000.

The defendant interposed a general demurrer, which the trial judge sustained, and this judgment is assigned as error.

The plaintiff contends that the acts on the part of the officers, agents, and servants of the municipality, complained of in her petition, were ministerial, or if governmental, amounted to the maintenance of such a nuisance as stated a cause of action on that theory.