Binkley v. Hughes

• Decision Date: 31 May 1934
• Citation: 73 S.W.2d 1111,168 Tenn. 86
• Parties: BINKLEY v. HUGHES et al.
• Court: Tennessee Supreme Court

73 S.W.2d 1111

168 Tenn. 86

BINKLEY v. HUGHES et al.

Supreme Court of Tennessee.

May 31, 1934

Error to Circuit Court, Lauderdale County; R. B. Baptist, Judge.

Suit by Mrs. Irene Binkley, administratrix, against Andrew Hughes and others. To review a judgment overruling a demurrer to the declaration and dismissing the suit, plaintiff brings error.

Affirmed.

Hugh L Clarke, of Brownsville, and Watkins & Watkins, of Ripley, for plaintiff in error.

Steele & Steele, of Ripley, for defendants in error.

MCKINNEY Justice.

The plaintiff instituted this suit against the defendants, road commissioners of Lauderdale county, both officially and personally, to recover damages for the wrongful death of her intestate, which occurred when a truck which he was driving on one of the highways in said county broke through a bridge precipitating him into the stream underneath. The declaration avers that it was the duty of defendants to keep said bridge in repair; that they knew of its unsafe and dangerous condition, and willfully, negligently, and carelessly failed to repair same, or to in any manner warn the public of its unsafe and dangerous condition; and that defendants had the material and money necessary to put said bridge in a safe condition. The declaration does not aver that defendants committed any positive or specific act that caused the injury, but the wrong complained of is simply one of passivity or inaction, a failure to perform a duty devolved upon them by law.

The trial court sustained a demurrer to the declaration and dismissed the suit, and plaintiff has appealed to this court and has assigned errors.

The county was not sued, and it is conceded that it is in no wise liable for the injury complained of, for the reason that the county in the establishment and maintenance of roads and bridges, was exercising the functions of sovereignty.

For the same reason the commissioners are not liable in their official character. Carothers v. Shelby County, 148 Tenn. 185, 253 S.W. 708; Fryar v. Hamilton County, 160 Tenn. 216, 22 S.W.2d 353.

In 29 Corpus Juris, 567, it is said: "Being governmental agencies, highway boards or commissioners, as such, are not ordinarily liable in tort."

A judgment against the defendants, as officials, would be valueless because they own no property with which to satisfy a judgment. Such commissioners are personally liable to a third party where the latter is injured as a result of some act of misfeasance committed by them. For example, if the commissioners, acting officially, should dig a ditch from the highway onto the premises of an adjoining landowner so as to drain the water from the road onto such land whereby it was damaged, the commissioners would be personally liable for such wrongful act. This court, however, is committed to the general rule that, in the absence of statute for mere failure to perform an official duty, the commissioners are not liable personally to third parties. Fryar v. Hamilton County, supra; Vance v. Shelby County, 152 Tenn. 141, 273 S.W. 557 559; Hale v. Johnston, 140 Tenn. 182, 203 S.W. 949; Gamble v. Vanderbilt University, 138 Tenn. 616, 200 S.W. 510, 514, L. R. A. 1916c, 875; State v McClellan, 113 Tenn. 616, 85 S.W. 267, 3 Ann. Cas. 992; Drake v. Hagan, 108 Tenn. 265, 67 S.W. 470.

In Gamble v. Vanderbilt University, supra, it was said:

"For nonfeasance an agent is responsible to his principal only. For misfeasance he may be responsible to third parties also. Nonfeasance is doing nothing. Misfeasance 'is a failure to use in the performance of a duty owing to the individual, that degree of care, skill, and diligence which the circumstances *** reasonably demand.' State v. McClellan, 113 Tenn. 616, 621, 85 S.W. 267, 3 Ann. Cas. 992."

The rule thus announced is sound and conforms to well-established principles conferring upon one person a cause of action against another. Actions for injuries ordinarily are based upon either contract or tort, in the absence of statute conferring redress for a particular wrong. In the instant case there were no contractual relations between plaintiff's intestate and the defendants. Defendants did not commit any tort or wrongful act resulting in injury to the deceased. In fact, they did nothing. On the other hand, in the case of digging a ditch, referred to above, the commissioners did commit a positive wrong for which they would be liable in damages to the injured landowner.

In State v. McClellan, supra, it was held that a county register and the sureties on his official bond were liable for damages resulting from his failure to register correctly a deed of conveyance of land, although his negligence was not so willful or gross as to imply willfulness. There, however, the cause of action was expressly conferred by statute.

In Hale v. Johnston, 140 Tenn. 182, 196, 203 S.W. 949, 952, it was said: "However, it is well settled in this jurisdiction that a common-law action may be maintained against a public official for misfeasance or nonfeasance in discharge of ministerial duties, if the elements of willfulness and malice are present."

We quote further from that opinion as follows: "Where the duty is absolute, certain, and imperative, and is simply ministerial, the officer is liable in damages to any one specially injured, either by his omitting to perform the task or by performing it negligently or unskillfully. On the other hand, where his powers are discretionary, and to be exerted or withheld according to his own judgment, he is not liable to any private person for a neglect to exercise those powers, nor for the consequences of a willful exercise of them, where no corruption or malice can be imputed to him, and he keeps within the scope of his authority."

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