Atkinson v. Town of Decatur

• Decision Date: 02 April 1923
• Docket Number: 23160
• Citation: 95 So. 689,131 Miss. 707
• Court: Mississippi Supreme Court
• Parties: ATKINSON v. TOWN OF DECATUR

95 So. 689

131 Miss. 707

ATKINSON v. TOWN OF DECATUR

No. 23160

Supreme Court of Mississippi

April 2, 1923

1. MUNICIPAL CORPORATIONS. Municipality must keep streets in reasonably safe condition for travel.

A municipality is not divested of all control over such of its streets as may be improved and maintained by the county under the provisions of chapter 255, Laws 1914 (section 7179 Hemingway's Code), and it is not relieved of its duty to the public to keep such streets in a reasonably safe condition for travel.

2 BRIDGES. Municipality cannot escape liability for injury by defective bridge on streets by reason of assumption of jurisdiction thereover by county officers.

A municipality cannot escape liability for an injury caused by a defect in a bridge on one of its public streets by reason of the fact that, acting under the provisions of chapter 255, Laws 1914 (section 7179, Hemingway's Code), the board of supervisors of the county and the highway commissioners of a special road district have, with the consent of the mayor and board of aldermen of such municipality, assumed jurisdiction over such street, and are maintaining the same as a part of a public road of the county.

HON. G E. WILSON, Judge.

APPEAL from circuit court of Newton county, HON. G. E. WILSON Judge.

Suit by Jeff Atkinson against the Town of Decatur. From a judgment dismissing the suit, plaintiff appeals. Reversed and remanded.

Judgment reversed, caused remanded.

Boyd & Boyd, for appellant.

The statute which permits municipal authorities to allow the construction of roads into the municipality where the municipality is in a good roads district is as follows: "Any public highway being constructed, improved and maintained under the provisions of chapter 149, of the Acts of 1910, or under chapter 257 of the Laws of 1912, or under any of the various methods of building good roads authorized by law of the state of Mississippi, where the same shall run or extend into or through any incorporated municipality within the district or districts operating under said act may be constructed, improved and maintained, the same within as without the corporate limits of said municipality; provided, however, that with the consent of and in conjunction with the commissioners provided for in said act the said municipality may, out of its own funds, add such street crossings, or make improvements as it may desire. Provided the mayor and board of aldermen shall, by an order spread upon the minutes, consent for the work to be done by the commissioners. "Section 7179 of Hemingway's Code.

Now there is no mention in this statute of any relief from liability for any municipality which permits these streets to be worked by others. In other words, municipal corporations are charged with the duty of keeping their streets and bridges in a safe condition for the traveling public and they cannot delegate this duty and the legislature never authorized the delegation of this duty or permitted it in the above statute. This is the only statute touching on the subject.

Our position, if the court please, is this, that no matter who built the road and bridge in question the town of Decatur was under a duty, which it could not delegate or shuffle off by permitting some one else to do the work and have charge of the improvement.

In 13 R. C. L., page 332, we find the following:

"As between a municipal corporation and the public, the duty to keep the streets and highways in a reasonably safe condition for travel rests primarily on the corporation, and cannot be evaded or suspended by any act of the municipality nor can it be delegated to another so as to relieve the municipality from liability for injuries resulting from its breach."

And again at page 355 of the same volume (13): "It may be stated as a general rule that a duty imposed either expressly or by implication on a municipal or quasi-municipal corporation to keep its streets and highways in a reasonably safe condition for public travel cannot be delegated so as to relieve it from liability for injuries resulting from the nonperformance thereof . . . Similarly, a city is not relieved from liability for failure to keep its sidewalks in a reasonably safe condition because the walk is built by a private citizen with its permission."

In 28 Cyc., at page 1344, is the following: "The duty of a municipal corporation to keep its streets in repair and in a safe condition for travel, when it has once arisen, cannot be delegated; as by entering into a contract under which a third person assumes the duty."

And again, at page 1355 of the same volume 28: "If it is the duty of a municipality to keep its streets in repair . . . it cannot escape liability for injuries occasioned by an unguarded excavation or other defects of which it has notice, even though made by an independent public officer in the performance of his duty. The liability is not based upon the act or omission of such officer, but upon the duty of the city as to streets."

We wish the court to bear in mind that the Statute under which the defendant claims immunity from liability is not mandatory at all but is entirely optional with the municipal authorities and that if the right to build these roads into the town is given, it is purely a voluntary act on the part of the municipal authorities. But, on the other hand the duty that a municipality owes to the traveling public is imperative and binding, that it must furnish streets and bridges in a reasonably safe condition for travel. This duty cannot be delegated, see authorities supra. As well said in 28 Cyc. 1355, the liability of a town is not based on the act or omission of an officer charged with the duty of keeping the streets and bridges in repair and safe for public travel, but is based upon the duty of the city to keep its streets in a safe condition. That is a nondelegable duty.

But the appellee says that inasmuch as chapter 176 of the Laws of 1914, require the board of supervisors to build and maintain all bridges costing above twenty-five dollars that it necessarily follows that the jurisdiction of the town is ousted and that the town's duty therefore ceases. But we submit that there is nothing in the acts relied on which relieve the town authorities of their duty to see that these streets and bridges are in a safe condition. Under the common law the municipality owed the traveling public the duty of keeping its streets in a reasonably safe condition for travel, and there is not a statute changing that duty, therefore that is still the law of Mississippi. Surely this court would not sanction the writing into these statutes something that the legislature never wrote there when the laws were enacted, to-wit: "And when said streets are turned over to said commissioners, the municipal authorities are relieved from all liability that may arise on account of any defects in streets." But, if the overruling of this demurrer is sustained, then that is what the court must, in effect, do.

But our friends on the other side argue that because the Constitution gives the board of supervisors full jurisdiction of all roads and bridges under their control, then this law allowing the good road bridges to be turned over to them places all roads and bridges under their exclusive jurisdiction whenever the necessary order turning them over has been passed. But in this contention we do not believe they are sustained by the law. The authorities above cited all hold that no matter to whom the control of streets is given by a municipality, they cannot delegate to that person or that body the duty to keep these streets in a reasonably safe condition for public travel. Suppose, for the sake of argument that they are right, what would the effect be? Practically every municipality in the state of Mississippi is a part of a good roads district and practically every municipality has streets which are but continuations of good roads in these districts. Then, by a simple order spread on their minutes the mayor and board of aldermen would or could turn over jurisdiction of practically all of their main thoroughfares to road commissioners and the town would be absolutely relieved from all liability and an injured party, who suffered injuries on account of defects in these streets would be deprived of his remedy because under the law a suit cannot be maintained against the county or board of supervisors for any injury thus occasioned. Surely this could not be the law, as the statutes are now. As before said in this brief, this court must sanction the writing into these statutes of something that is not there. And if it should sanction this, then it would be taking away from persons injured any remedy whatever for the wrongs suffered.

We submit that in view of these authorities quoted and the authorities cited by them, the proposition is clear that a municipality cannot turn over to other parties or other bodies, the care and control of its streets and relieve itself of all liability thereby. The duty it owes to the traveling public is one that is non-delegable and cannot be avoided in any event, we submit, except by direct legislative enactment, which is not the case here.

We respectfully submit that the action of the lower court in overruling the demurrer to the special plea was erroneous and that this cause should be reversed and remanded.

D. M. Anderson and C. E. Johnson, for appellees.

There is no Mississippi statute fixing express liability on a municipality for failure to keep its streets and bridges in repair but this liability has existed because the towns have had power to keep in repair. Bell v. West, 51 Miss 263. There being no express statutory liability, it does not require an express direct statute to remove this...