Opinion
34692.
DECIDED SEPTEMBER 18, 1953.
Action for damages. Before Judge Jones. Albany City Court. April 10, 1953.
Ray Y. Cross, for plaintiff in error.
Durden Durden, contra.
1. The defendant's oral renewal and insistence upon its demurrers as filed to the original petition, where the plaintiff amended his petition before the demurrers were ruled upon, was sufficient to renew the general grounds of demurrer so that they covered the petition as amended.
2. The petition, in which the plaintiff sought recovery for personal injuries caused by the negligent maintenance of a stadium by the defendant municipality, failed to show that the stadium was operated by the city, under charter authority, as an independent commercial venture, but showed that the stadium was owned and operated by the city as a public recreational facility, in the exercise of the city's governmental function of providing for the welfare of its citizens; and the court did not err in sustaining the general demurrer to the petition.
DECIDED SEPTEMBER 18, 1953.
Leon J. Pollock brought this action for damages for personal injuries against the City of Albany, in the City Court of Albany, on February 23, 1953. The City of Albany filed general and special demurrers to the petition on March 9, 1953. The plaintiff, on April 10, 1953, offered amendments to his petition, which were allowed, subject to objection and demurrer, before the demurrers already filed were ruled upon. At the hearing on April 10, 1953, the defendant's counsel orally stated that the defendant's demurrers were renewed to the petition as amended, and the court sustained the general demurrers.
The petition as amended alleged substantially the following: The defendant is a municipal corporation, chartered under the laws of Georgia, and owns a stadium within its corporate limits. This stadium is equipped by the defendant solely for the viewing of spectator sports, such as football and baseball games, and is surrounded by a wall so that the public cannot view games within the stadium without paying an entrance fee. There are ticket windows located along the wall, where tickets are sold to those desiring to view the games conducted within the stadium. The stadium is equipped with permanent stands on the south side, and with semi-permanent stands or bleachers on the north, and seats about 10,000 persons. All of the football games played in Albany in 1952 by the Albany High School football team (six games) were played in the stadium.
The defendant has appointed a stadium committee to manage its stadium; the committee is controlled by and is an agency of the defendant city. For all high-school football games played in the stadium, an entrance fee of $1.25 per person is charged. Crowds of from four to ten thousand persons attended the games played in 1952. The stadium committee receives entrance fees paid by the public. The stadium is equipped with metal doors which are kept locked and barred, denying entrance to the public except when athletic events are held within the stadium, at which times the public is admitted upon payment of the prescribed fee.
The stadium is not operated or equipped in such a manner as to induce or invite the public to use it for the furtherance of public health, recreation, or well-being, but is operated on a commercial basis, in such a manner that pecuniary gain and profit inures to the defendant as a direct and primary result. The public pays taxes for the operation and maintenance of the stadium, and is locked out except at such times as the stadium committee sees fit to admit the public upon payment of an entrance fee. The stadium contains no swings, swimming pool, shade trees, or anything that would tend to facilitate its use by the public in furtherance of public health, recreation, and well-being. Incidental profit is derived by the defendant from the operation of concessions within its stadium, but direct profit is derived by the defendant from gate receipts, by virtue of authority vested in the defendant under the terms of section 1 of its charter, providing in part: ". . . and shall be able in law . . . to sell and convey, rent or lease, and otherwise manage and dispose of all property . . ." and under other terms and provisions of its charter. The defendant has charter authority to operate its stadium primarily for profit and for pecuniary gain, and does so operate its stadium.
The stadium is not operated in furtherance of the health and well-being of the high-school football team, as the team could derive as much health and well-being from playing elsewhere without spectators or in the presence of non-paying spectators.
There are certain footways within the stadium along which spectators must walk in order to reach their seats. Upon entering the north side of the stadium, a spectator must walk along a path to the bottom of the stadium bowl and then proceed along a walkway in front of the bleachers and finally ascend to a seat in the bleachers. In 1952, the plaintiff attended the football game between the teams of Albany High School and Richmond Academy in the stadium. After paying his entrance fee, the plaintiff entered the stadium on the north side and descended to the bottom of the stadium along the regular walkway. Toward the east side of the stadium and near the northeast corner of the bleachers, there was a hole or excavation in the plaintiff's course along the walkway provided. The hole was in shadows cast by the bleachers, and the plaintiff was unaware of its presence until he stepped into the hole and was injured.
The solid, packed condition of the excavated dirt near the hole indicated that it had existed a sufficient length of time for the defendant to have covered it or erected barriers around it for the protection of the public. The defendant has exclusive control of the care and maintenance of its municipal stadium, and had notice of the existence of this excavation and has ample time to correct this defect in a public way. The defendant was negligent in digging the hole, in failing to cover it before exposing the public to the danger created, in failing to erect a barrier to warn the plaintiff of the excavation, and in failing to exercise the required degree of care to protect the plaintiff, who was a paying spectator; this negligence was the proximate cause of the plaintiff's injuries, consisting of a broken bone in the plaintiff's foot. The plaintiff gave written notice to the defendant more than 30 days before bringing his action, and a copy of the notice was attached to the petition.
The defendant's general demurrers were: that the petition set forth no cause of action; that the stadium was maintained as a place of resort for the promotion of public health and welfare in virtue of the city's governmental powers; that it is not alleged that the city has charter authority to operate the stadium for profit; and that the petition, when deleted of conclusions of the pleader, sets forth no cause of action. The plaintiff excepts to the judgment sustaining these demurrers.
1. A demurrer to an original petition does not, without more, cover the petition after it has been amended in material respects; and it has been said that, if a demurrer is still relied upon, after an amendment to a pleading has been allowed, it should be renewed or insisted upon ( General Accident, Fire c. Corp. v. Way, 20 Ga. App. 106 (2), 92 S.E. 650; Satlof v. State, 52 Ga. App. 208, 182 S.E. 864), or "urged against the petition" after amendment thereto ( Mauldin v. Mauldin, 25 Ga. App. 743 (3), 105 S.E. 252); and it has been ruled that, if the court permits an amendment to a petition after a demurrer thereto has been filed but before the demurrer has been ruled upon, the demurrer need not again be "formally presented" in order to except to the ruling on the demurrer ( Thornton Warren v. Cordell, 8 Ga. App. 588 (2), 70 S.E. 17). An oral motion to strike, in the nature of a general demurrer, may be made at any time before verdict. Tyson v. Shoemaker, 208 Ga. 28, 33 ( 65 S.E.2d 163); O'Hara v. Youmans, 82 Ga. App. 164 ( 60 S.E.2d 841); Altman v. Moses, 73 Ga. App. 505 ( 37 S.E.2d 236); Code § 81-302. Therefore, the defendant's oral renewal of and insistence upon its demurrers as filed to the original petition, where the plaintiff amended his petition before the demurrers were ruled upon, was sufficient to renew the general grounds of demurrer so that they covered the petition as amended. The court ruled only upon the general grounds of the demurrer as thus renewed.
2. "Between a municipality and the public the question of liability depends on whether at the time of the injury sued for the municipality was engaged in governmental or ministerial duty." Roberts v. Mayor c. of Savannah, 54 Ga. App. 375, 376 ( 188 S.E. 39). In determining whether the operation of a park, an auditorium, or a swimming pool, as a place of recreation or amusement, is in the performance of a municipality's ministerial or governmental functions, the following test has been consistently followed by the courts of this State: "If the park is primarily for the use of the public, intended as a place of resort for pleasure and promotion of health of the public at large, its operation is in virtue of the governmental powers of the municipality, and no municipal liability would attach to the non-performance or improper performance of the duties of the officers, agents, or servants of the city in respect to keeping the park safe for use by members of the general public. [Citing.] But if the city, having charter authority, maintain the park primarily as a source of revenue, the duty of maintaining it in a safe condition for the use for which it is intended would be ministerial, and municipal liability would attach for breach of such duty." Cornelisen v. City of Atlanta, 146 Ga. 416, 419 ( 91 S.E. 415).
It is contended that the provisions of section 1 of the charter of the City of Albany (Ga. L. 1923, p. 370), providing the city with power to "rent or lease, and otherwise manage and dispose of all property," authorize the City of Albany to operate its stadium primarily for profit and for pecuniary gain. But under a charter amendment creating a Park Committee for the City of Atlanta and giving that committee power and "full authority over all municipally owned parks, playgrounds, golf course and other amusement centers of Atlanta, and to make rules and regulations governing operation, regulation, and control of same," it was held that the City of Atlanta had no authority to maintain a swimming pool primarily as a commercial enterprise for the purpose of adding revenue to the city treasury. Petty v. City of Atlanta, 40 Ga. App. 63 (4) ( 148 S.E. 747). It was further held, in the fourth headnote of the Petty case: "If, as alleged in the petition, the municipal officers undertook to maintain the park and the swimming pool as a private commercial enterprise for the purpose of financial gain to the city, the endeavor was ultra vires and no liability would attach to the municipality from acts or omissions of the city's officers or employees in connection therewith. [Citing.]"
We note that section 34 (13) of the Albany charter (Ga. L. 1923, pp. 370, 414) gives that city power "To own, use and operate for municipal purposes and for profit a system of waterworks and electric lights and gas works," and that, by section 36 of its charter (Ga. L. 1923, pp. 370, 415), authority is given "to own and operate for reasonable profit a municipal abattoir." But the charter is silent as to the city's power to operate a stadium as a commercial venture, and such power cannot be implied from the general authority to manage the city's property. The allegations that the city has such power are not sustained by the provisions of the charter of the City of Albany, of which this court can take judicial notice. Petty v. City of Atlanta, 40 Ga. App. 63, supra.
It appears from the petition that the public attended the athletic events held in the stadium and paid taxes for the operation and maintenance of the stadium. This allegation tends to show that the stadium was not in fact operated as an independent commercial venture, but was owned by the city as a public recreational facility, and so was operated in the exercise of the city's governmental function of providing for the welfare of its citizens, notwithstanding the allegations of the petition to the contrary.
The petition failed to set out a cause of action, and the court did not err in sustaining the general demurrer thereto.
Judgment affirmed. Felton and Worrill, JJ., concur.