54 Ga. App. 661 | Ga. Ct. App. | 1936
J. H. Lyons brought a suit in tort against the Mayor and Aldermen of the City of Savannah, for personal injuries alleged to have been received by him as a result of the defendant’s negligence. In the petition as amended it was alleged that in 1927 and 1929 the legislature passed acts authorizing the defendants to construct, operate, and maintain a flying field, and all things necessary as accessories thereto, without the corporate limits of the city, to charge for admission and fees for their use, and to place employees in control of the field and its amusement and recreation facilities; that the defendant bought certain land on which were constructed various buildings, parking spaces, roadways, and other accessories; that on November 6, 1929, the defendant in council assembled adopted a resolution authorizing the purchase of a plat of 40 acres adjoining the Savannah Airport, and on November 15, 1929, a deed was executed conveying to the defendants that tract of land bordering 990 feet on the eastern line of the airport proper and 1320 feet on the western boundary of the Middleground Road, said tract embracing that land on which the city erected the beacon light, around which light run the road
The defendants demurred to the petition as setting out no cause of action, and because the acts of the General Assembly did not authorize the city to construct or maintain roadways outside of or adjacent to the flying field or park, and the plaintiff’s presence and mission at the place where he was injured were not of such a nature as would give him a cause of action. The petition was amended, and the defendants demurred to it as setting forth no cause of action, as showing on its face that the roadway on which the plaintiff was injured is without the corporate limits of the city, and that the mayor and aldermen were without authority to acquire or maintain the roadway, and their acts in acquiring the land on which the roadway is located, or in maintaining the roadway, were ultra vires and void. The demurrers were overruled, and the defendant excepted.
It is contended for the defendants that the operation by the city of an airport, also known as a flying field or landing field, is a governmental function in the exercise of which the city is not liable for injuries caused by negligence of its agents or employees. The plaintiff insists, since the city receives certain revenues from the operation of the airport, that the city is liable in the same manner as any other operator of a legitimate business, and that the capacity in which the city acts is ministerial and not governmental. The municipal airport is of recent origin. Its legal status is not yet well defined, and is not easy to determine. But the statute authorizing the City of Savannah to construct or prepare a landing or flying field for airplanes (Ga. L. 1927, pp. 1526, 1531) and the uniform airport act (Ga. L. 1933, p. 102, Code, § 11-201 et seq.), furnish evidence of the legislative intention with regard to the question. In the Savannah charter amend
There is no conflict between those decisions. The question is, in which class does the present case fall? The petition does not allege that the airport was maintained primarily for pecuniary profit to the city. It does allege that the airport was leased to a private corporation for “a valuable consideration,” and that the city grants to an oil company, '“for compensation to the city,” “the privilege of selling gas, oil, and other commodities” to automobiles and airplanes, and the city receives “a stipulated sum” on all oil and gas sold, and that the city has the privilege of charging for the use of the parking spaces, roadways, and facilities. It is not alleged that the city has ever charged entrance fees or parking fees or other fees. The allegations that the city receives a “stipulated sum,” and “a valuable consideration,” are insufficient to show that the city operates the airport primarily as a source of revenue. Therefore, under the Watson and Cornelisen cases, supra, the petition is insufficient to show liability against the defendants. In this connection it is proper to refer to the uniform airport act of March 23, 1933 (Code, §§ 11-201-11-209). Section 2 of the act (Code, § 11-202) is as follows: “Any lands acquired, owned, leased, controlled, or occupied by such counties, municipalities, or other political subdivisions for the purpose or purposes enumerated in section 11-201, shall and are hereby declared to be acquired, owned, leased, controlled, or occupied for public, governmental, and municipal purposes.” It is clear that this legislation invested the airports of the State with the character of governmental institutions. In Thrasher v. Atlanta, 178 Ga. 514 (2), 518 (173 S. E. 817), the court said that aviation was recognized by the General Assembly as a lawful business to which it ascribed a public interest. But the question whether the operation of an airport is a governmental function under the act of 1933 was not involved in that case. In Swoger v. Glynn County, 179 Ga. 768 (2) 774 (177 S. E. 723), it was held that the maintenance of an airport is a public county purpose under the uniform airport act. If it should be held that the city was running a private business for profit, the plaintiff would have difficulty in justifying his presence
The location and character of the roadway is in dispute between the parties, the plaintiff contending that the roadway was within the airport, and the defendant that it was outside. This contention arises from the fact that after the original establishment of the airport the city bought forty acres of land which adjoined the tract already in use, and constructed thereon the roadway and other appurtenances. The city had legal authority to do this, from the act of August 20, 1929, authorizing the taking or condemning of land by the mayor and aldermen of Savannah for the purpose of extending a landing field. Ga. L. 1929, p. 1284, sec. 4. Consequently the roadway as described in the petition must be considered as within the airport. The petition does not allege this road to be a public street of the city, but calls it by its right name, a roadway. It was outside of the corporate limits, circular in form, and wholly within the city’s property. The decision in City of Atlanta v. Keiser, 50 Ga. App. 600 (179 S. E. 192), is conclusive that such a roadway is not a street. The petition as amended did not set out a cause of action, and the court erred in not sustaining the general demurrers.
Judgment reversed.