McDermott v. Board of Commissioners of County of Delaware
| Decision Date | 19 November 1915 |
| Docket Number | 8,812 |
| Parties | MCDERMOTT v. BOARD OF COMMISSIONERS OF THE COUNTY OF DELAWARE, ET AL |
| Court | Indiana Appellate Court |
From Delaware Circuit Court; William A. Thompson, Judge Pro Tem.
Action by Carrie McDermott against the Board of Commissioners of the County of Delaware and others. From a judgment for defendants, the plaintiff appeals.
Affirmed.
John T Meredith, for appellant.
Ralph S. Gregory, for appellees.
This action was brought by appellant against appellees, the Board of Commissioners of the County of Delaware, Indiana, and the individual members thereof, for personal injuries sustained by appellant, which she alleges she suffered by reason of a fall upon defective stone steps, which led to and from the second story of the courthouse in the city of Muncie, Indiana, upon which it is alleged appellees negligently permitted ice and snow to accumulate. Appellees filed separate demurrers to the complaint, which were sustained, and upon failure to plead further, judgment was rendered against appellant that she take nothing by her complaint and that appellees recover costs. From this judgment an appeal has been taken.
The only question involved is whether appellees are liable under the law to appellant for the injuries suffered in the manner alleged in the complaint. After alleging the location of the courthouse in the city of Muncie, Indiana, and that appellees, William T. Janney, John B. Jackson and William Sunderland, were on January 9, 1912, the qualified and acting commissioners of the county, the complaint further alleges in substance that on the east side of the courthouse leading up to it were stone steps, which it was the duty of appellees to maintain and keep in repair, and which formed the only approach to the courthouse from the east; the stone steps were carelessly, negligently and wilfully allowed and permitted by appellees to be and become and remain out of repair in that all except the top one were broken in two near the middle and slanted downward, and became coated with a slick covering of ice and snow, which appellees negligently and wilfully allowed to accumulate upon the steps to a depth of three or four feet, leaving but a narrow passageway about two feet wide up and down the middle thereof, all of which was known to appellees. On January 9, 1912, appellant while attempting to descend the steps, not knowing of the dangerous and unsafe condition thereof, and exercising due care, slipped and fell, from which she suffered a severe injury to her damage in the sum of $ 10,000.
The law seems to be well settled as a general proposition that a county is not liable any more than a state would be liable for the negligence of its agents or officers, in the absence of a statute creating liability. Board, etc. v. Daily (1892), 132 Ind. 73, 31 N.E. 531; White v. Board, etc. (1891), 129 Ind. 396, 28 N.E. 846; Smith v. Board, etc. (1892), 131 Ind. 116, 30 N.E. 949; Morris v. Board, etc. (1892), 131 Ind. 285, 31 N.E. 77; Board, etc. v. Allman (1895), 142 Ind. 573, 42 N.E. 206; State, ex rel. v. Board, etc. (1908), 170 Ind. 595, 85 N.E. 513; State, ex rel. v. Goldthait (1909), 172 Ind. 210, 87 N.E. 133; Talbott v. Board, etc. (1908), 42 Ind.App. 198, 85 N.E. 376.
Appellant admits that it has been held in this jurisdiction that a county is not liable to an individual for the negligence of its officers, but insists that the authorities so holding are limited to the facts in the particular cases, and that to hold so absolutely is a harsh rule, unsound and without foundation in justice; that the rule should not be extended, and that by narrowing its application, the case at bar will not fall within the general rule; that § 5989 Burns 1914, § 5748 R. S. 1881, which provides that a county shall keep all public buildings of the county in repair, supports her contention and creates liability under the facts pleaded in the case at bar.
We address our attention to a review of the principle underlying the authorities, holding generally that a county is not liable for the negligent acts or omissions of its agents and officers, charged with the duty of transacting its business, in response to appellant's very earnest argument that we do so. A county may be termed a quasi corporation with corporate capacity for specific ends; being involuntary in that its creation is without the consent or concurrence of its inhabitants, but by the sovereign power of the State for governmental purposes. Its corporate functions are to be performed in the manner provided by law. State, ex rel. v. Goldthait, supra; State, ex rel. v. Hart (1896), 144 Ind. 107, 43 N.E. 7, 33 L. R. A. 118; 7 R. C. L. 924, 936; Stevens v. St. Mary's Training School (1893), 144 Ill. 336, 32 N.E. 962, 36 Am. St. 438, 18 L. R. A. 832; Board, etc. v. Daily, supra; Board, etc. v. Allman, supra. The statute referred to by appellant has been in force since May 6, 1863, and adds no support to her contention, as the statute enjoins the duty on the board of commissioners to keep the public buildings of the county in repair without creating liability for failing so to do; hence, appellant's right of action, if one exists, as set forth in her complaint, is independent of statute.
As to the foundation upon which rests the legal proposition that a county is not liable for the negligent acts of its agents and officers, nothing can be added to the language found in 7 R. C. L. 955, 956: * * *.
The duties of a board of commissioners are public in their nature. The service it performs is for the public, from whence members thereof receive their emoluments, and it is not answerable to an individual for its negligent acts "A breach of duty by a county under this line of reasoning creates a liability to the state only, on account of which an offending county may be amenable to a public action by indictment, but not at the suit of an individual * * *." 4 R. C. L. 226. In the case of Board, etc. v. Daily, supra, it was held that the county was not liable for a personal injury occasioned by reason of the negligence of the board of commissioners in caring for and controlling the courthouse, but recognized that a distinction existed in this State between the duties imposed as to the care and management of public buildings and that of public bridges, but added that the weight of authority was against holding a county liable for injuries occurring by reason of the failure of the county to keep the public bridges in repair. Following this decision, the case of the Board, etc. v. Allman, supra, reached the Supreme Court, which was an action against the county to recover for the death of a person caused by a defective approach to a bridge over a watercourse, and as aforesaid the courts had prior, to this time recognized liability on the part of the county, when injuries occurred by reason of the county negligently failing to keep the bridges in proper repair. By this decision it was laid down generally in overruling many of the earlier decisions that a county was not liable for the negligent conduct of its officer and servants, placing it upon the broad ground that the county is a subdivision of the State and as such is an instrumentality of government, exercising the authority given by the State and no more liable for the acts or omissions of its officers than the State. The facts alleged in the...
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