Ashbury v. Norfolk

• Decision Date: 21 March 1929
• Citation: 152 Va. 278
• Parties: VIRGIL I. ASHBURY v. CITY OF NORFOLK.
• Court: Virginia Supreme Court

Page 278

152 Va. 278

VIRGIL I. ASHBURY v. CITY OF NORFOLK.

Supreme Court of Virginia, Richmond.

March 21, 1929.

1. MUNICIPAL CORPORATIONS — Liability of Municipality — Governmental Function — Preservation of the Public Health. — The performance of duties that relate to the preservation of the public health and the care of the sick is of concern to the public as a whole; in executing this function the municipality and the officers through whom it acts perform governmental, or public, as distinguished from mere corporate, or private, duties, for which there is no liability, and the officers and agencies engaged in the performance of such duties are public officers for whose torts the municipal corporation is not responsible.

2. MUNICIPAL CORPORATIONS — Liability of Municipality — Exercise of Discretionary Powers of a Public of Legislative Character — Corporate Powers. — It is established doctrine that, when acting in good faith, municipal corporations are not liable for the manner in which they exercise discretionary powers of a public or legislative character. A different rule generally prevails as to their private or corporate powers.

3. MUNICIPAL CORPORATIONS — Governmental Function — Removal of Garbage — Liability of Municipality for Negligence. — The removal of garbage by a municipality is a governmental function, which is designed primarily to promote public health and comfort, and hence the municipality is not liable therefor in tort when the negligence which is charged occurred in the performance of that particular function, and no nuisance is thereby created.

4. MUNICIPAL CORPORATIONS — Liability — Test to Determine whether Function is Governmental or Ministerial. — It is not the character or name of the agent who executes the duty of removing the cause of discomfort and ill health to the public which fixes the character of the duty performed, but it is the act itself which determines whether it be governmental of ministerial.

5. MUNICIPAL CORPORATIONS — Liability of Municipality — Test to Determine whether Function is Governmental or Ministerial — Act for Common Good. — The difficulty lies not in the statement of the governing principles of law as to the liability of municipal corporations for negligence, but in their application to particular facts. The underlying test is whether the act is for the common good of all without the element of special corporate benefit, or pecuniary profit. If it is, there is no liability, if it is not, there may be liability. That it may be undertaken voluntarily and not under compulsion of statute is not of consequence.

6. MUNICIPAL CORPORATIONS — Liability of Municipality — Exercise of Political, Discretionary and Legislative Authority. — Municipal corporations, like public officers of the Commonwealth, when exercising their political, discretionary and legislative authority, are not responsible for the misconduct, negligence or omissions of the agents employed, and the doctrine of respondeat superior does not apply.

7. STARE DECISIS — Extracting Rules of General Application from the Cases — Peculiar State of Facts of Each Case. — It is usually unsafe and hazardous to seek to classify adjudicated cases upon any complex question of law, and to extract from them rules of general application. So much of the reasoning in such cases is due to their diversities, that error is likely to creep into any generalization of them, and vitiate the results of an analysis that would ambitiously seek to reduce them to a system, and tempt the incautious inquirer to overlook the differences of fact that modify and control their application. It is, therefore, wiser in the main to investigate and decide each case upon its own peculiar state of facts, than by too general statements or deductions to incur the risk of being betrayed into too abstract reasoning.

8. MUNICIPAL CORPORATIONS — Distinction between Public Functions and business Enterprises — Stare Decisis — Fundamental Rules and Particular Cases. — While it may be true that the distinction between purely public functions of a municipal corporation which are certainly within the police power, and those private business enterprises which are not, is becoming increasingly difficult to maintain, yet this is doubtless due to the bad habit of counting cases instead of adhering to fundamental rules.

9. MUNICIPAL CORPORATIONS — Liability of Municipality — Governmental Functions — Removal of Garbage — Case at Bar. — In the instant case plaintiff was struck and injured while on a sidewalk in the city of Norfolk by a pair of horses which belonged to the city, which had been hitched to a trailer, then being used for the collection of garbage. The king pin which fastened the double-bar broke, which allowed the singletress to fall on the heels of the horses and thus cause them to run away.

Held: That the removal of garbage by a city is a public governmental function, and hence defendant city was not liable to plaintiff.

Error to a judgment of the Law and Chancery Court of the city of Norfolk in a proceeding by motion for a judgment for damages. Judgment for defendant. Plaintiff assigns error.

The opinion states the case.

James G. Martin and John C. Davis, for the plaintiff in error.

R. W. Peatross and John S. Rixey, for the defendant in error.

PRENTIS, C.J., delivered the opinion of the court.

The plaintiff, Ashbury, was struck and injured while on the sidewalk on the north side of Main street near its intersection with the sidewalk on the east side of Church street, Norfolk, by one of a pair of horses which belonged to the city, which had been hitched to a trailer, then being used for the collection of garbage on Main street. Just before the team reached Church street, the king pin which fastened the double-bar broke, which allowed the singletrees to fall on the heels of the horses, and this caused them to run away.

There was a verdict for the plaintiff which the trial court set aside as contrary to the law and the evidence, and entered final judgment for the defendant, of which judgment the plaintiff complains.

It is unnecessary for us to recite the facts in detail. There was no conflict in the evidence. The plaintiff relies solely upon the fact that the king pin broke, while the evidence of the city tended to show that it had exercised due care, so that had there been a verdict in favor of the defendant it should not have been disturbed.

That, however, is not the question which is argued here. The defendant city demurred to the notice of motion, which alleged that the wagon and horses were being operated by the defendant in "the cleaning of its streets and the removal of the trash from the streets," which horses and wagon were operated by the defendant not in a governmental capacity but in its corporate functions, and that the negligence of the city was the cause of the injury.

The grounds of demurrer were, that the notice of motion shows on its face that the horses and wagon belonging to defendant were at the time complained of being operated by the city of Norfolk in its governmental capacity.

The trial court overruled this demurrer, and there is a cross-assignment of error as to this by the city.

The evidence showed clearly that the horses and wagon were being operated at the time in the removal of garbage which had been placed in cans on the edge of the sidewalk.

It is not apparent whether there was any change of view as to the demurrer, but it seems to be clear that the verdict was set aside because the trial court was of opinion that in the removal of garbage from the streets of the city the defendant was acting in its governmental capacity, and therefore that the city is not liable. This then raises the precise question to be here determined.

The text-writers indicate that in the removal of garbage the municipality acts in a governmental capacity and therefore that it is not liable for negligence. 19 R.C.L., section 406, page 1128.

In 25 Cyc. 1305, it is said: "The performance of duties that relate to the preservation of the public health and the care of the sick is likewise of concern to the public as a whole; in executing this function the municipality and the officers through whom it acts perform governmental, or public, as distinguished from mere corporate, or private, duties, for which there is no liability, and the officers and agencies engaged in the performance of such duties are public officers for whose torts the municipal corporation is not responsible."

Many recent cases on the subject have been collected in the note to Harris District of Columbia (256 U.S. 650, 65 L.Ed. 1146, 41 Sup.Ct. 610), 14 A.L.R. 1471. In that case the Supreme Court of the United States held that the sprinkling of streets to keep down dust for the promotion of the comfort and health of the general public is a public or governmental act, as distinguished from a private or municipal act, which exempts the District of Columbia from liability for injuries caused by one of its employees while engaged therein. We find this in the opinion in that case: "It is established doctrine that, when acting in good faith, municipal corporations are not liable for the manner in which they exercise discretionary powers of a public or legislative character. A different rule generally prevails as to their private or corporate powers. Dillon, Mun. Corp. (5th ed.), section 1626 et seq., and cases cited. Application of these general principles to the facts of particular cases has occasioned much difficulty. The circumstances being stated, it is not always easy to determine what power a municipal corporation is exercising. But nothing else appearing, we are of opinion that, when sweeping the streets, a municipality is exercising its discretionary powers to protect public health and comfort, and is not performing a special corporate or municipal duty to keep them in re par. This conclusion, we think, accords with commoni observation,...