Bailey v. Lawrence County

• Decision Date: 28 May 1894
• Citation: 59 N.W. 219,5 S.D. 393
• Parties: BAILEY v. LAWRENCE COUNTY.
• Court: South Dakota Supreme Court

59 N.W. 219

5 S.D. 393

BAILEY v. LAWRENCE COUNTY.

Supreme Court of South Dakota

May 28, 1894

Syllabus by the Court.

1. A county is not liable in an action for damages caused by the neglect of its officers to keep in repair a bridge upon a public highway within its limits, unless such action is expressly given by statute.

2. Notwithstanding that the statute of this state imposes upon the boards of county commissioners the duty of keeping in repair the bridges in counties having no township organizations, and provides the method and means of raising revenue for that purpose, in the absence of an express statute making such county liable to an action for damages caused by a neglect of such duty, no action lies against the county by a private individual.

Appeal from circuit court, Lawrence county; Charles M. Thomas Judge.

Action by Henry E. Bailey against Lawrence county. Judgment for defendant, and plaintiff appeals. Affirmed.

Edwin Van Cise, for appellant. William G. Rice, for respondent.

CORSON P. J.

This was an action for damages for injuries sustained by the plaintiff by reason of a defective bridge, and the case comes before us on an appeal from the order of the circuit court sustaining the demurrer, and involves the question of the liability of a county in this state for an injury resulting from a defective bridge constructed by a county, constituting a part of the public highway. It is alleged in the complaint in substance, that the bridge upon which the injury occurred was erected and constructed by, and under the direction of, the defendant county, and that it was the defendant's duty to keep, maintain, and operate it for the public benefit, but that by reason of the negligence of the defendant, and disregard of its said duty, it had become unsafe, fallen out of repair, and was dangerous and unfit to be used, to the knowledge of the defendant, at the time of the injury complained of; that neither the plaintiff nor his agent had any knowledge or information that the said bridge was defective, out of repair, and dangerous, and that while plaintiff's agent was crossing the same as a traveler upon the highway, and without fault on the part of the plaintiff or his agent, the said bridge fell, precipitating said agent and the buggy and horses of the plaintiff into the stream below, by reason of which they were injured, and plaintiff damaged, etc. The respondent county contends that in this state no county is liable for injuries from a defective bridge on a public highway, without regard to the fact of whether or not the county, or its agents and servants, had knowledge of such defect. The appellant contends that under the laws of this state making counties corporations, imposing upon them the duties of keeping in repair the bridges upon the public highways, and conferring upon them the power to raise by taxation the funds necessary to keep such bridges in repair, there is imposed upon such counties the implied liability to answer in damages for injuries sustained from a defective or unsafe bridge.

The proposition that at common law a county is not liable for an injury resulting from a defect in a bridge upon a public highway is sustained by the great weight of authority. From the numerous decisions upon this question, we cite the following: Templeton v. Linn Co., 22 Or. 313, 29 P 795; Lorillard v. Town of Monroe, 11 N.Y. 392; Askew v. Hale, 54 Ala. 639; Clark v. Adair Co., 79 Mo. 536; Granger v. Pulaski Co., 26 Ark. 37; White v. County of Bond, 58 Ill. 297; White v. Commissioners, 90 N.C. 437; Brabham v Supervisors, 54 Miss. 363; Downing v. Mason Co., 87 Ky. 208, 8 S.W. 264; Barnett v. Contra Costa Co., 67 Cal. 77, 7 P. 177; Scales v. Ordinary of Chattahoochee Co., 41 Ga. 225; Board of Com'rs v. Riggs, 24 Kan. 255; Watkins v. County Court, 30 W.Va. 657, 5 S.E. 654; Fry v. County of Albemarle, 86 Va. 195, 9 S.E. 1004; Woods v. Colfax, 10 Neb. 552, 7 N.W. 269; Commissioners v. Mighels, 7 Ohio St. 109; Smith v. Board, 46 F. 340; Barnes v. District of Columbia, 91 U.S. 552; Cooley, Const. Lim. (6th Ed.) 301; Dill. Mun. Corp. §§ 996, 997, 999; Elliott, Roads & S. p. 42; Baxter v. Turnpike Co., 22 Vt. 123; Ward v. County of Hartford, 12 Conn. 404; Commissioners v. Martin, 4 Mich. 557; Adams v. Bank, 1 Me. 361; Altnow v. Town of Sibley, 30 Minn. 186, 14 N.W. 877; Freeholders v. Strader, 18 N. J. Law, 108; Farnum v. Concord, 2 N. H. 392; Morey v. Town of Newfane, 8 Barb. 645. And, for a full discussion of the question, see opinion of Mr. Justice Gray in Hill v. Boston, 122 Mass. 344. The learned counsel for the appellant has furnished us with a very able and exhaustive brief in support of the position taken by him, and has called to our attention the fact that the supreme courts of Iowa, Indiana, Pennsylvania, Maryland, and Oregon have held the doctrine he contends for. From the numerous cases cited from these five states, we only deem it necessary to cite the leading case from each of the states establishing the doctrine contended for. Wilson v. Jefferson Co., 13 Iowa, 181; Commissioners v. Baker, 44 Md. 1; House v. Board, 60 Ind. 580; Rapho Tp. v. Moore, 68 Pa. St. 404; McCalla v. Multnomah Co., 3 Or. 424. The Maryland decisions we have not access to, but those of the other states we will refer to; and we are of the opinion that, when the later cases in Iowa and Indiana are considered, it will be found that the doctrine laid down in the earlier cases is followed as authority, but not approved, by the later judges. The case cited from Oregon was decided under a statute of that state then in force, which provided as follows: "An action may be maintained against a county *** for an injury to the right of the plaintiff, arising from some act or omission of such county or other public corporation." In 1887 that statute was amended by striking out all after "for an injury," etc. Since that amendment was made the case of Templeton v. Linn Co., supra, has been decided by that court, holding that the county is not liable for an injury caused by a defective bridge. In Indiana, while the court still holds counties liable in this class of cases, it is quite evident from a recent decision made by that court that, if the question was a new one in that state, the present court would not so hold. In the case of Board v. Dailey, 132 Ind. 73, 31 N.E. 531, Mr. Justice Miller, speaking for the court, says: "The appellee brought this action against the appellant to recover damages for a personal injury occasioned by the alleged negligence and carelessness of appellant in the care and control of the courthouse of Vigo county. *** It is now well settled that counties are involuntary corporations, organized as political subdivisions of the state for governmental purposes, and not liable, any more than the state would be liable, for the negligence of its agents or officers, unless made liable by statute. *** There may be little distinction between the duties imposed upon boards of commissioners in the care and management of bridges and of public buildings; but, while we regard the liabilities of counties for negligence in failing to keep bridges in repair as well settled, we recognize the fact that the weight of authority is the other way (Board v. Chipps [Ind. Sup.] 29 N.E. 1066; Elliott, Roads & S. 42, supra), and are not disposed to extend the rule so as to embrace other cases. ***" A similar view is taken by the later Iowa cases. In Kincaid v. Hardin Co., 53 Iowa, 430, 5 N.W. 589, the court says: "It is insisted by counsel for appellant that the defendant must be held liable, in the case at bar, because such liability rests upon the same ground, and is controlled by the same principles, as the cases involving liability for injuries caused by defective bridges. It must be admitted that a distinction in principle between an injury resulting from a defective county bridge and...