Bd. of Com'rs of Jasper Cnty. v. Allman

Decision Date25 November 1895
Citation42 N.E. 206,142 Ind. 573
CourtIndiana Supreme Court


Appeal from circuit court, Newton county; Frank Swigart, Judge pro tem.

Action by James H. Allman, administrator, against the board of commissioners of Jasper county, Ind., for personal injuries from a defective bridge. From a judgment for plaintiff, defendant appeals. Reversed.

S. P. Thompson and Stuart Bros. & Hammond, for appellant. Brown & Hall, R. W. Marshall, and Cummings & Darroch, for appellee.


This was an action by appellee to recover damages for the death of his intestate, caused, as is alleged, by a defective approach to a bridge over a water course. This action was commenced in Jasper county, and the venue changed to the court below. To the complaint, which is in one paragraph, appellant demurred, for want of facts, which was overruled. An answer of general denial was filed. The cause was tried by a jury. A special verdict was returned, and over a motion for a venire de novo, a motion for judgment in favor of appellant on the special verdict, a motion for a new trial, and a motion in arrest, judgment was rendered against appellant for $6,000. Appellant assigns as error the action of the court in overruling the demurrer to the complaint and the motion in arrest of judgment.

Appellant earnestly insists that “there is no liability by counties for injuries caused by the negligence of its officers in constructing or in repairing, or failing to repair, bridges over water courses, for the reason that there is no statute imposing such liability; the overwhelming weight of authority is to the effect that the duty imposed upon counties to keep bridges in repair does not carry with it an implied liability to answer in damages for injuries sustained from defective or unsafe bridges, and that such liability can only arise from express statutory enactment; that the case of Cones v. Board, 137 Ind. 404, 37 N. E. 272, in effect overruled the former holdings of this court in such cases.” It must be admitted that the decided weight of authority in such cases is as stated by appellant. From the numerous decisions to the effect claimed, we cite the following: Cones v. Board, supra; Smith v. Board, 131 Ind. 116, 30 N. E. 949;Morris v. Board, 131 Ind. 285, 31 N. E. 77;Board v. Daily, 132 Ind. 73, 31 N. E. 531;Hollenbeck v. Winnebago Co., 95 Ill. 148;Templeton v. Linn Co., 22 Or. 313, 29 Pac. 795;Manuel v. Commissioners, 98 N. C. 9, 3 S. E. 829;White v. Commissioners, 90 N. C. 437;Wood v. Tipton Co., 7 Baxt. 112;Brabham v. Supervisors, 54 Miss. 363;White v. Bond Co., 58 Ill. 297;Hedges v. Madison Co., 6 Ill. 567;Lorillard v. Town of Monroe, 11 N. Y. 392;Askew v. Hale Co., 54 Ala. 639;Granger v. Pulaski Co., 26 Ark. 37;Downing v. Mason Co., 87 Ky. 208, 8 S. W. 264;Reardon v. St. Louis Co., 36 Mo. 555;Swineford v. Franklin Co., 73 Mo. 279;Clark v. Adair Co., 79 Mo. 536;Gilman v. Contra Costa Co., 8 Cal. 52;Id., 68 Am. Dec. 290, and note on pages 294 and 295; Barnett v. Contra Costa Co., 67 Cal. 77, 7 Pac. 177;Scales v. Chattahoochee Co., 41 Ga. 225;Board v. Riggs, 24 Kan. 188;Fry v. Albemarle Co., 86 Va. 195, 9 S. E. 1004;Watkins v. County Court, 30 W. Va. 657, 5 S. E. 654;Woods v. Colfax Co., 10 Neb. 552, 7 N. W. 269;Board v. Mighels, 7 Ohio St. 109;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. 320;Mitchell v. City of Rockland, 52 Me. 118;Altnow v. Town of Sibley, 30 Minn. 186, 14 N. W. 877;Dosdall v. County of Olmsted, 30 Minn. 96, 14 N. W. 458; Board v. Strader, 18 N. J. Law, 108; Cooley v. Freeholders of Essex, 27 N. J. Law, 415; Young v. Commissioners, 2 Nott & McC. 537;Farnum v. Town of Concord, 2 N. H. 392;Eastman v. Meredith, 36 N. H. 284;Morey v. Town of Newfane, 8 Barb. 645;Heigel v. Wichita Co., 84 Tex. 392, 19 S. W. 562;Id., 31 Am. St. Rep. 63, and note on pages 65 and 66; Ensign v. Supervisors, 25 Hun, 20; Albrecht v. Queens Co. (Sup.) 32 N. Y. Supp. 473;Smith v. Board, 46 Fed. 340;Barnes v. District of Columbia, 91 U. S. 540;Bailey v. Lawrence Co. (S. D.) 59 N. W. 219; Cooley, Const. Lim. (6th Ed.) 301; 1 Dill. Mun. Corp. §§ 25, 26; 2 Dill. Mun. Corp. §§ 996, 997, 999; 4 Am. & Eng. Enc. Law, pp. 364-367, and notes; 15 Am. & Eng. Enc. Law, 1143, 1144, and cases cited in note; 1 Beach, Pub. Corp. § 734; Tied. Mun. Corp. § 325. By common law, the inhabitants of a county were required to repair bridges over water courses. Board v. Bailey, 122 Ind. 46, 48, 23 N. E. 672;State v. Gorham, 37 Me. 451; Whithall v. Board, 40 N. J. Law, 302; State v. Hudson Co., 30 N. J. Law, 137; Rex v. Oxfordshire 16 East, 223. Yet it is settled law that counties were not liable at common law for injuries caused by their negligence in failing to keep such bridges in repair. Cones v. Board, supra, and authorities heretofore cited. It is a well-settled proposition that, when subdivisions of a state are organized solely for a public purpose by a general law, no action lies against them for an injury received by any one on account of the negligence of the officers of such subdivision, unless a right of action is expressly given by statute; that such subdivisions, as counties and townships, are instrumentalities of government, and exercise authority given by the state, and are no more liable for the acts or omissions of their officers than the state. Cones v. Board, supra; Morris v. Board, supra; Board v. Daily, supra; Smith v. Board, supra; White v. Board, 129 Ind. 396, 28 N. E. 846;Abbett v. Board, 114 Ind. 61, cases cited on page 63, 16 N. E. 127; Freel v. School City (Ind. Sup.; this term) 41 N. E. 312;Summers v. County of Daviess, 103 Ind. 262, 2 N. E. 725;Board v. Boswell, 4 Ind. App. 133, 30 N. E. 534;Edgerly v. Concord, 62 N. H. 8;Goddard v. Inhabitants of Harpswell, 84 Me. 499, 24 Atl. 958;Id., 30 Am. St. Rep. 373, and note on pages 398-402; Howard v. City of Worcester, 153 Mass. 426, 27 N. E. 11;Larrabee v. Peabody, 128 Mass. 561; Clark v. Waltham, Id. 567; Hill v. Boston, 122 Mass. 344;Wixon v. Newport, 13 R. I. 454;Finch v. Board, 30 Ohio St. 37;Lane v. District Tp. of Woodbury, 58 Iowa, 462, 12 N. W. 478;Flori v. St. Louis, 69 Mo. 341;Bigelow v. Inhabitants of Randolph, 14 Gray, 541;Ford v. School Dist., 121 Pa. St. 543, 15 Atl. 812; Id., 1 Lawy. Rep. Ann. 607; and all authorities cited on the proposition concerning bridges.

In Board v. Chipps, 131 Ind. 56, 29 N. E. 1066, this court said: “The decided weight of authority is that, in the absence of a statute upon the subject, a county is not liable for a failure to keep its bridges in repair. Elliott, Roads & S. p. 42.” It was held by this court in Smith v. Board, supra, that a county is not liable for an injury to a servant sustained without his fault while engaged in tearing down one of its bridges, although he worked under the immediate charge of its agent, who was known by the board of commissioners to be incompetent, which incompetency was the proximate cause of the injury. The court said: “A county is a civil or political division of the state, created by general laws, to aid in the administration of the government, and in the absence of a statute imposing special duties, with corresponding liabilities, is no more liable for the tortious acts of negligence of its officers and agents than the state.” In Morris v. Board, supra, this court held that a county was not liable in an action for damages resulting from a failure of the board of commissioners to keep the jail in a healthy and inhabitable condition. The court said: “The most logical and generally accepted theory is that political subdivisions, such as counties and townships, are created to give effect to and enable citizens to exercise the right of local self-government. State v. Denny, 118 Ind. 449, 21 N. E. 274;White v. Board, 129 Ind. 396, 28 N. E. 846. Such subdivisions are instrumentalities of government, and exercise authority delegated by the state, and act for the state. As the state is not liable for the acts or omissions of its officers, neither should a political subdivision of the state be liable for the acts or omissions of its officers as relating to political powers.” White v. Board, supra, and Summers v. County of Daviess, supra, are to the same effect. This court held in Board v. Daily, supra, that a county is not liable for damages occasioned by the negligence and carelessness of the board of commissioners in the care and control of the courthouse. The court said: “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.” In Cones v. Board, supra, this court held that a county could not be held liable for personal injuries sustained while traveling upon a free gravel road of the county, and by reason of the defects in the construction and repair of such road. The court also expressly declared that the county was not liable at common law for the negligence of its officers, and that no liability existed by statute with reference to bridges. The court said: “It is quite true that the principle adopted in the bridge cases is in perfect analogy to the case before us, and, if we would be consistent, those cases would control the present; but we are fully convinced that the principle there adopted, of an implied liability, is not in harmony with the great weight of authority, ancient and modern. * * * The liability did not exist at common law, and does not exist by statute with respect to bridges or highways, and the objections to liability are well stated in Hollenbeck v. Winnebago Co., 95 Ill. 151, as follows: ‘No reason is perceived why a county should be held to respond in damages for the negligence of its officers while acting in the discharge of public...

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