Autrey v. City Council
127 S.E. 796
Ga. Ct. App.
1925
Check Treatment
Bell, J.

(After stating the foregoing facts.)

In Cornelisen v. City of Atlanta, 146 Ga. 416 (1) (91 S. E. 415), the Supreme Court held as follows: “Where a city maintains a park 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 o£ 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. It would not affect the public character of the duties of the officers, agents, or servants of the city that a purely incidental profit might result to the city from its operation or management of the park.” This ruling was made in answer to a certified question. For a statement of the facts see 19 Ga. App. 436. The decision in that case seems to control the case under consideration. See also City of Warrenton v. Smith, 149 Ga. 567 (101 S. E. 681).

While, as was further said in the Gornelisen case, a municipality may be held liable for the neglect or improper performance'of a duty arising under proper charter authority, relating to a municipal endeavor which is of a private nature “primarily for revenue and promotion of municipal welfare,” there is nothing in the present petition, considered as a whole, to remove the case from the operation of the general rule that in those instances where the duty of the municipality is of a purely public nature, “intended for the benefit of the public at large without any pretense of private gain to the municipality,” there is no liability for negligence in regard thereto.

It is true the petition alleges that the waterworks system of the City of Augusta is operated by the city “in its private capacity and for profit and gain,” but it affirmatively appears from all of the allegations made that the particular part of its system described in the petition as á “cut-off” was used for no other purpose than to control the flow of water into a pool in the park, and was therefore devoted only to the benefit of the general public, “without *760'any pretense of private gain to the municipality.” The court did not err in sustaining the demurrer and dismissing the petition.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.