dissenting. The majority of the court are of the opinion that the petition as amended failed to set out a cause of action, and that the judgment of the trial court sustaining a general demurrer and dismissing the suit should be affirmed. I can not concur with my colleagues in this judgment. I am of the opinion that the petition as finally amended was legally sufficient to withstand a general demurrer. While it is now generally recognized that a municipality is not liable for damage resultant from the exercise of a governmental function, it is otherwise if the damage is the result of a ministerial function. The Political Code (1910), § 897, succinctly states the rule as follows: “ Municipal corporations are not liable for failure to perform, or for error in performing, their legislative or judicial powers. For neglect to perform, or for improper or unskillful performance of their ministerial duties, they are liable.” The record in the instant case calls upon us to *735determine under which class of acts this case falls. My associates hold that it clearly comes under the governmental rule. I think it is clear that it comes under the ministerial doctrine. The petition as amended specifically alleges that the damage sued for was occasioned by the “ negligent, imperfect construction of said sewer-eye and drainage, and this condition of the sewer-eye has been frequently called to the attention of the defendant and demand made that the defective condition be remedied by the city, but without effect.” The distinction between a governmental act and a ministerial act is clearly stated in the following quotation from 5 Thompson on Negligence, § 5794: “That a municipal corporation is not liable for errors of judgment in matters where its governing body' or other officers act in the exercise of a legislative or judicial discretion, has given rise to a distinction as to its liability, between the case of a defective plan and that of a defective execution of public work. If the plan of a public work is so defective that I am thereby damaged, I can recover nothing, because the making of the plan was in the nature of a legislative or a judicial act; but if the work is defectively or negligently executed by the officers or agents of the municipal corporation who are charged with its execution, and I am thereby injured, then, according to this judicial casuistry, I can recover damages.” Section 5872 of this'same work also states that municipal corporations “are frequently held liable to pay damages to the owners of private property for injuries which proceed from the negligent or unskillful manner in which the ministerial work of making the sewer, drain, of the like has been executed, or for negligence in failing to keep it in repair, or allowing it to become obstructed, whereby unnecessary damage is done to such property; in other words, where they have failed to exercise ordinary or reasonable care.” Our Supreme Court has often recognized this rule to be correct.
In Langley v. Augusta, 118 Ga. 590, 598 (45 S. E. 486, 489, 98 Am. St. Rep. 133), it was said: “The officers in charge of the affairs of a municipal corporation may select places for the con: struction of a system of sewerage and drainage, and adopt a plan for such construction, without rendering the city liable in damages for injuries resulting from such selection and from the proper [italics mine] construction of the system. These officers may also, if it is necessary, take or damage property of private citizens in construct*736ing the system of sewerage and drainage; but adequate compensation must be paid for property so taken or damaged. The same is true of the construction of any public improvement. City of Atlanta v. Green, 67 Ga. 386; Moore v. Atlanta, 70 Ga. 611; Roughton v. Atlanta, 113 Ga. 948 [39 S. E. 316]. If a municipal corporation negligently constructs a system of sewerage or drainage, or negligently maintains one properly constructed, so as to injure private citizens or their property, it will be liable in damages for the injury thus occasioned.” It was said in Massengale v. Atlanta, 113 Ga. 966 (39 S. E. 578) : " Permitting a public city sewer to he or remain in such a defective condition as to become a nuisance, with resulting injury to realty, gives a cause of action against the municipality in favor of the owner of such fealty, and on the trial thereof he may recover for all damages to his property which have occurred within four years of the filing of his petition.” In the case of Mayor &c. of Savannah v. Spears, 66 Ga. 304, the city was held liable on account of damage to crops from the escape or overflow of water from a canal maintained by the city for drainage purposes. In the case of Mayor &c. of Waycross v. Houk, 113 Ga. 963 (39 S. E. 577), the city was held liable on a petition to enjoin the city from continuing the location of the mouth of the main sewer of the city near the plaintiff’s premises, or from extending it, as was contemplated, so that the sewerage would be discharged directly on her land. Again, in Kea v. City of Dublin, 145 Ga. 511 (89 S. E. 484), which was a case where damage to property from a dumping-ground of the city was claimed, the city authorities on repeated requests had refused to abate the nuisance, and it was held that a cause of action existed. See also Mayor &c. of Savannah v. Jones, 149 Ga. 140 (99 S. E. 297), recognizing and reaffirming the principle that a city is liable “ where the injury was done after the governmental function had ceased, or where the cause of the injury had been permitted to continue for an unreasonable or unnecessary time.” Other cases in point are: Mayor &c. of Brunswick v. Tucker, 103 Ga. 233 (29 S. E. 701); City of Atlanta v. Word, 78 Ga. 276, 286, and City of Atlanta v. Trussell, 21 Ga. App. 340 (94 S. E. 649), collating numerous cases in this State and other States.
It is true, of course, that pleadings must be construed most strongly against the pleader, but this does not warrant a strained *737ox unreasonable construction, and, as I view the petition under review, it alleged facts sufficient to show a negligent maintenance of a defective sewer (it being alleged that the city was repeatedly given notice to remedy the defective sewer); and it was also distinctly asserted in the petition that the defendant city negligently constructed the sewer in question. These allegations, in my opinion, bring the case squarely within and under the rule announced in the decisions cited above, viz.: “ If a municipal corporation negligently constructs a system of sewerage or drainage, or negligently maintains [italics mine] one properly constructed, so as to injure private citizens or their property, it will be liable in damages for the injury thus occasioned.”
In reaching this conclusion I have not been unmindful of the recent ruling of the Supreme Court holding that “the duty of a city to maintain its sewerage-drainage system in a good working and sanitary condition is a governmental function” (City of Augusta v. Cleveland, supra), but since the decisions upon which I base my opinion are apparently direct rulings to the contrary, and were rendered prior to that decision, I am constrained to follow the older line of cases, which have never been criticised, modified, or overruled.
As to that part of the majority opinion which deals with the case as if there was a fatal variance between the notice and the petition, suffice it to say that the record before us presents no such question for adjudication, since the city waived its right to insist upon a variance, by not specially demurring to the petition on this ground. See Langley v. Augusta, 118 Ga. 590, 601(12) (45 S. E. 486, 490, 98 Am. St. Rep. 133), where it was said: “The city had a right to waive the notice altogether, as well as its right to insist upon a variance. Foster v. Bellaire (Mich.), 86 N. W. 383. And it would seem that a failure to demur to the petition on this ground when the notice was attached thereto as an exhibit would amount to a waiver.”