Ballard v. City of Tampa

Citation124 Fla. 457,168 So. 654
PartiesBALLARD v. CITY OF TAMPA.
Decision Date03 June 1936
CourtUnited States State Supreme Court of Florida

Error to Circuit Court, Hillsborough County; L. L. Parks, Judge.

Action by Ida Ballard, a widow, against the City of Tampa. To review a judgment for defendant, plaintiff brings error.

Reversed and remanded.

COUNSEL

Arthur J. Goble and Hampton, Bull & Crom, all of Tampa, for plaintiff in error.

Alonzo D. McMullen, of Tampa, for defendant in error.

OPINION

BROWN Justice.

The prime question presented by this case, as well stated in plaintiff in error's brief, is whether or not a municipal corporation is liable in damages for the death of a convict and prisoner of the municipality, who was working out a court sentence, caused by the negligence or wrongful act of an officer or agent of the municipality while superintending the work of the prisoner in the maintenance and improvement of the streets of the municipality.

The plaintiff in error filed a declaration consisting of three counts against the city of Tampa, Fla., defendant in error for the death of her husband, while a prisoner of said municipality. The first count alleged that the death of plaintiff's husband, while a prisoner of the city of Tampa, was caused by an assault and battery committed upon his person by a foreman or superintendent of the city, while acting in his line of duty in working plaintiff's husband on the streets of the city. The second count alleged that a superintendent or foreman of the city of Tampa, who was engaged in maintaining and improving the streets of the city, did force and compel plaintiff's husband, while he was a prisoner of the city, to work upon the streets of the city, over his protest and against his will, while he was in a sick and weakened condition, of which physical condition the defendant had notice, and which resulted in his death. In the third count plaintiff charged that the death of her husband, while he was a prisoner of the city of Tampa, was caused by the negligence of the city in the care and treatment of him after he had become overheated while working on the streets of Tampa, and had fallen in a faint and sickened condition.

A demurrer to the declaration was sustained and judgment on the demurrer entered against plaintiff, who took writ of error.

As a general rule a municipality is not liable for injuries to prisoners or convicts resulting from the negligence of the keeper, guard, policemen, or convict boss in charge of them for the reason that, in the maintenance of a jail and the working of convicts, the municipality is exercising governmental duties, and cannot be held responsible for the negligence or misconduct of officers which it must, of necessity, employ. See 46 A.L.R. 100, 101. This general principle is recognized, with a significant qualifification, in Brown v. Eustis, 92 Fla. 931, 110 So. 873. However, while there is some conflict of authorities, we are of the opinion, and our own cases so hold, that the repaid and upkeep of the streets of a municipality is a corporate function, for the abuse of which, by the negligence or wrongful conduct of its agents in the course of their regular employment, the city is liable. See 43 C.J. 974, 977; Key West v. Baldwin, 69 Fla. 136, 67 So. 808; City of Pensacola v. Jones, 58 Fla. 208, 50 So. 874; City of Jacksonville v. Drew, 19 Fla. 106, 45 Am.Rep. 5; Keggin v. Hillsborough County, 71 Fla. 356, 71 So. 372; Bryan v. City of West Palm Beach, 75 Fla. 19, 77 So. 627; Ostrom v. San Antonio, 94 Tex. 523, 62 S.W. 909; City of Denver v. Davis, 37 Colo. 370, 86 P. 1027, 6 L.R.A. (N.S.) 1013, 119 Am.St.Rep. 293, 11 Ann.Cas. 187, 20 Am.Neg.Rep. 498; Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329, 39 L.R.A. (N.S.) 649; City of Louisville v. Hans, 167 Ky. 160, 180 S.W. 65; Hilman v. Anniston, 214 Ala. 522, 108 So. 539, 46 A.L.R. 89; 13 R.C.L. 310. See also, as bearing on this general question, Chardkoff Junk Co. v. Tampa, 102 Fla. 501, 135 So. 457; Maxwell v. Miami, 87 Fla. 107, 100 So. 147, 33 A.L.R. 682; Smoak v. City of Tampa (Fla.) 167 So. 528; Clearwater v. Gautier, 119 Fla. 476, 161 So. 433.

The question which is presented is whether or not the city of Tampa was merely continuing to exercise its exclusive governmental function in compelling the prisoner to work out his sentence by assisting in the maintaining and cleaning of the streets; or whether, immediately upon taking him out of confinement as its prisoner, and putting him to work on the repair or maintaining of its streets, there was a change, on the part of the city, from the exercise of only its exclusive governmental function to that of the exercise of its corporate or municipal function, or a combination of both, so as not to exempt the city from liability for injuries resulting from negligence.

In Kaufman v. Tallahassee, 84 Fla. 634, 94 So. 697, 698, 30 A.L.R. 471, this court said:

'A municipality is organized within certain limits of territory for local advantage and convenience of the people in the particular locality. While it may be a public agency of the state in some of its activities, it is possessed of local franchises and rights which pertain to it as a legal personality or entity for its quasi private (as distinguished from public) corporate advantage. See 1 McQuillin, on Municipal Corporations, 168; Keggin v. Hillsborough County, 71 Fla. 356, 71 So. 372 [373].
'The establishment and maintenance of a fire department may be regarded as a governmental function, that point is not necessary to a decision in this case, but whether the operation of its vehicles and trucks in crowded streets, where due either to carelessness in the handling of the same, or the clumsy character of the vehicle itself, it is a menace to the safety of pedestrians is a wrong or the violation of a duty which the city owes to the people, is another question.
'The distinction between what is a governmental and what a ministerial function of a city is not always so clear that a given transaction may at once be classed as the one or the other; but, whether governmental or not, it is always quite difficult, if not impossible, to give a satisfactory reason for holding a city immune from liability when through its own negligence or the carelessness or inefficiency of its agents and employees it violates a right of a citizen to his injury, especially when one considers that provision of the Bill of Rights which declares that--'All courts in this state shall be open, so that every person for any injury done him in his lands, goods, person or reputation shall have remedy, by due course of law, and right and justice shall be administered without sale, denial or delay." Const.Declaration of Rights,§ 4.

Thus, this court, recognizes the dual capacity of a municipal corporation.

The courts are not in accord in cases involving the particular facts we have before us in this case. Indeed, the weight of authority is to the effect that such facts create no municipal liability. In Bartlett v. Paducah, 91 S.W 264, 28 Ky.Law Rep. 1174, it was held that one who is injured by indignities inflicted upon him by the officials who have him in charge, while working out a fine on the streets of a city for...

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  • Cauley v. City of Jacksonville
    • United States
    • United States State Supreme Court of Florida
    • 16 Julio 1981
    ...cities remained immune from suit, but, as to proprietary acts, immunity was abolished. Florida accepted this view. Ballard v. City of Tampa, 124 Fla. 457, 168 So. 654 (1936); Brown v. City of Eustis, 92 Fla. 931, 110 So. 873 (1926); City of Orlando v. Pragg, 31 Fla. 111, 12 So. 368 (1893). ......
  • Elrod v. City of Daytona Beach
    • United States
    • United States State Supreme Court of Florida
    • 7 Abril 1938
    ......City. of Tallahassee, 84, fla. 634, 94 So. 697, 30 A.L.R. 471;. Chardkoff Junk Co. v. City of Tampa, 102 Fla. 501,. 135 So. 457; Smoak v. City of Tampa, 123 Fla. 716,. 167 So. 528;, ballard v. City of Tampa, 124 Fla. 457, 168 So. 654, 657; ......
  • City of Tampa v. Easton
    • United States
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    • 26 Noviembre 1940
    ...... Jacksonville Beach v. Jones, 101 Fla. 95, 131 So. 369,. 133 So. 562; Chardkoff Junk Co. v. City of Tampa,. 102 Fla. 501, 135 So. 457; Maxwell v. City of. Miami, 87 Fla. 107, 100 So. 147, 33 A.L.R. 682;. Kaufman v. City of Tallahassee, 84 Fla. 634, 94. So. 697, 30 A.L.R. 471; Ballard v. City of Tampa,. 124 Fla. 457, 168 So. 654; City of Tallahassee v. Kaufman, 87 Fla. 119, 100 So. 150. . . . In this. case the declaration contains allegations that: 'the. defendant (city) was the owner of a certain automobile [145. Fla. 197] truck which was then and there being ......
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    • United States
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    • 25 Noviembre 1964
    ...In 1936, the Supreme Court of Florida followed the decision of the Alabama court in Hillman v. Anniston. In Ballard v. City of Tampa, 124 Fla. 457, 168 So. 654 (1936), the Florida court, while recognizing that the weight of authority at that time was to the contrary, stated that 'we are dis......
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