Opinion
33359.
DECIDED MARCH 2, 1951. REHEARING DENIED MARCH 16, 1951.
Action for damages; from Albany City Court — Judge Jones. October 23, 1950. (Application to Supreme Court for certiorari.)
Ray Y. Cross, E. L. Smith, for plaintiff.
A. N. Durden, for defendant.
1. It is well settled law in this State that a municipal corporation is not liable for the negligence of its officers and employees when acting in a governmental function.
2. The operation or maintenance of a fire department by a municipal corporation is a governmental function. And where, as here, the city was authorized to furnish fire protection beyond its corporate limits under such rules, regulations and charges that the Board of City Commissioners might prescribe, the fact that a reasonable annual fee was charged for such service did not change the operation of the fire department from a governmental function to a ministerial one.
3. The plaintiff's petition was subject to the defendant's general demurrer, and the trial judge did not err in sustaining the demurrer and dismissing the action.
DECIDED MARCH 2, 1951. REHEARING DENIED MARCH 16, 1951.
W. E. Banks filed his petition against the City of Albany and alleged the following: The charter of the defendant was amended by an act of the General Assembly of Georgia of 1941 (Ga. L. 1941, p. 1010), approved March 24, 1941, whereby the defendant was authorized to furnish fire protection without the corporate limits of the City of Albany under such rules, regulations and charges as the Board of City Commissioners of the defendant might prescribe. The defendant in accordance with the authority of said amendment passed and adopted an ordinance on September 23, 1947, as follows: "BE IT ORDAINED by the authority of aforesaid that no call shall be answered by the fire department outside the corporate limits of the City of Albany, Georgia, unless the property owner, in advance of making such call, shall comply with the following conditions: (1) Register at the office of the Chief of the Fire Department and pay an annual registration fee as follows: All property outside of the present corporate limits but within the area included in the new corporate limits by virtue of the act of the General Assembly approved March 23, 1947, and known as Albany Charter Amendment shall pay $6.00 per residence; $10.00 per plant for small business; $20.00 per plant for manufacturing and large industrial plants.
"All property outside of the new city limit area but within the area described in Section 5 of this Ordinance, shall comply with the following conditions: (1) Register at the Office of the Chief of the Fire Department and pay an annual registration fee as follows: $10.00 per residence; $15.00 per plant for small business; $30.00 per plant for manufacturing and large industrial plants."
The plaintiff owned a residence outside the new city limit area of the City of Albany and became a subscriber under said ordinance, registering and paying the $10 prescribed in said ordinance for the fire protection service to be rendered for one year, which period had not expired on the date of the fire. On the night of June 12, 1950, the plaintiff's house and its contents were totally destroyed by fire, without fault on his part. The plaintiff's property was worth $5000 at the time it was destroyed. The fire department answered the plaintiff's call shortly after the building became ignited. The employees of the defendant appeared on the scene with a fire truck, but through the negligence of said employees the building and its contents were totally destroyed by fire. The negligence of the defendant and its employees consisted of the failure to protect said property and the failure to extinguish the fire although the defendant's employees could have done so if they had tried.
The plaintiff has served the defendant with a written notice of his claim for said loss, a copy of which is attached, and more than 30 days have elapsed from the time the written notice was served until the petition was filed. The defendant refuses to pay the plaintiff for his loss.
The passage and adoption of said ordinance and the charge made therefor was done for gain and profit by the city and the duties resting upon the defendant in connection therewith were ministerial and not a governmental function.
By amendment the plaintiff further alleged that the defendant's negligence arose from the following acts: (a) The defendant appeared with an inadequate supply of water; (b) the defendant appeared with faulty equipment and was therefore unable to make use of the natural water supply that was available in abundance; (c) the defendant refused to call other equipment to the scene though your petitioner repeatedly requested that the defendant do so; (d) the defendant then stood idly by and watched the premises burn.
The plaintiff also alleged in the amendment that the municipal defendant was possessed of charter authority to afford fire protection to patrons without and beyond its corporate limits primarily as a means and source of pecuniary gain and profit. The General Assembly, at the request of the defendant, authorized the defendant to offer this protection under such conditions and upon such terms as it might elect. The ordinance adopted pursuant to this authorization reflects no purpose in its inception other than the raising of revenue, and it is not a measure to enable the municipality to better govern that portion of its people residing within the municipality. The wording of the ordinance and the type of service brand this service as a ministerial, proprietary function, entered into by the defendant for the primary purpose of raising revenue, and retaining its ministerial capacity though it inures ultimately to the benefit of the public.
The defendant demurred generally and specially to the petition. The grounds of the general demurrer were that the petition set forth no cause of action against the City of Albany because the maintenance of a fire department by a municipality in Georgia is a governmental function for which the city is not liable, and the general allegations that the charge made by the City of Albany was done for gain and profit and that the duties resting upon the city were ministerial and not a governmental function are conclusions of the plaintiff without the necessary specific allegations of fact supporting such conclusions.
The court sustained the general demurrer and dismissed the plaintiff's action, and the exception here is to that judgment.
It is well settled law in this State that a municipal corporation is not liable for the negligence of its officers and employees when acting in a governmental function. Code, §§ 69-301 and 69-307; Davis v. City of Rome, 23 Ga. App. 188 (3) ( 98 S.E. 231); Clay v. City of Rome, 74 Ga. App. 754 ( 41 S.E.2d 337). The operation or maintenance of a fire department by a municipal corporation is a governmental function. It was held in Wright v. City Council of Augusta, 78 Ga. 241: "A municipal corporation is not liable to an action for damages resulting from the negligence or inefficiency of its fire department, or the insufficiency of the supply of water, although it may levy an annual water tax, and may have in its employment officers whose duty it is to keep the fire-plugs in good order and the mains filled with water, and although there may have been similar negligence by the firemen on previous occasions"; and in Edmondson v. Town of Morven, 41 Ga. App. 209 (6) ( 152 S.E. 280): "The determination by a city as respects the maintenance of a fire department for the purpose of extinguishing fires is a governmental function, and the failure of a city to maintain such a department affords no ground for an action against the city for damage from fire caused by a failure of the city to maintain a fire department."
It is conceded by the plaintiff in error in his brief that fire protection by a municipality is ordinarily a governmental function; but he contends that the city here in extending and affording fire protection beyond its corporate limits is not acting or indulging in a governmental function but is acting in a ministerial capacity, as it charged fees for such fire protection.
The City of Albany by its charter and ordinance provisions above referred to was empowered to extend its fire protection to property outside its city limits but within the area described in the ordinance, upon payment of specified annual registration fees. The plaintiff, owning a residence outside the city limits of Albany but within the area described in said ordinance, registered and paid a fee of $10 for service to be rendered him as fire protection for his property for one year, and the period had not expired when his property was destroyed by fire. Do the facts alleged in the petition show that the Albany Fire Department was operated primarily as a source of revenue? We think not. The cost of maintaining and operating a fire department in a municipality for the purpose of giving fire protection to the property therein is paid from funds raised by taxation. Where such fire protection service is extended to property beyond the corporate limits, under the provisions and terms as alleged, it cannot reasonably be said that the fire department is operated primarily as a source of revenue, and that the operation of the fire department is thus changed from a governmental to a ministerial function.
In Mayor c. of Savannah v. Lyons, 54 Ga. App. 661 ( 189 S.E. 63), it was held that a charter amendment authorizing the City of Savannah to construct, operate and maintain a flying field outside of the corporate limits of the city and to charge for admissions and fees for the use of the field did not authorize the City of Savannah to operate the airport primarily as a source of revenue, it being held that the operation of the airport was a governmental function, notwithstanding the fees and revenue received from lessees and others for their privileges on the flying field, it not appearing that the airport was operated primarily as a source of revenue. That case is very similar in principle to the present case. There the city was authorized to charge fees for services to be performed beyond the city limits, and it was held that the operation of the airport was still a governmental function, irrespective of the revenue received therefrom. Here the city was authorized to furnish fire protection beyond its corporate limits under such rules, regulations and charges that the Board of City Commissioners might prescribe, and the fact that a reasonable annual fee was charged for such service did not change the operation of the fire department from a governmental function to a ministerial one. See and compare Watson v. City of Atlanta, 136 Ga. 370 ( 71 S.E. 664); Lee v. City of Atlanta, 197 Ga. 518 ( 29 S.E.2d 774).
The petition was subject to the general demurrer, and the trial judge did not err in sustaining the demurrer and dismissing the action.
Judgment affirmed. Felton and Worrill, JJ., concur.