Board of Commissioners of Jasper County v. Allman

• Decision Date: 25 November 1895
• Docket Number: 17,386
• Parties: Board of Commissioners of Jasper County v. Allman, Administrator
• Court: Indiana Supreme Court

42 N.E. 206

142 Ind. 573

Board of Commissioners of Jasper County v. Allman, Administrator

No. 17,386

Supreme Court of Indiana

November 25, 1895

From the Newton Circuit Court.

Judgment reversed, with instructions to sustain the demurrer to the complaint, and for further proceedings not in conflict with this opinion.

S. P Thompson, Stuart Bros. & Hammond, for appellant.

R. W Marshall, Cummings & Darroch and J. T. Brown, for appellee.

OPINION

Monks, J.

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 was 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 six thousand dollars.

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; that such liability can only arise from express statutory enactment; and that the case of Cones v. Board of Commissioners of Benton County, 137 Ind. 404, 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, etc., supra; Smith v. Board etc., 131 Ind. 116, 30 N.E. 949; Morris v. Board, etc., 131 Ind. 285, 31 N.E. 77; Board, etc., v. Dailey, 132 Ind. 73, 31 N.E. 531; Hollenbeck v. Winnebago Co., 95 Ill. 148, 35 Am. Rep. 151; Templeton v. Linn Co., 22 Ore. 313 (15 L.R.A. 730, 29 P. 795); Manuel v. Board, etc., 98 N.C. 9; White v. Commissioners, 90 N.C. 437, 47 Am. Rep. 534; Wood v. Tipton Co., 7 Baxt. 112, 32 Am. Rep. 551; Brabham v. Supervisors, 54 Miss. 363, 28 Am. Rep. 352; White v. County of Bond, 58 Ill. 297, 11 Am. Rep. 65; Hedges v. County of Madison, 6 Ill. 567; Lorillard v. Town of Monroe, 11 N.Y. 392, 62 Am. Dec. 120; Askew v. Hale County, 54 Ala. 639, 25 Am. Rep. 730; Granger v. Pulaski County, 26 Ark. 37; Downing v. Mason County, 87 Ky. 208, 12 Am. St. Rep. 437, 8 S.W. 264; Reardon v. St. Louis County, 36 Mo. 555; Swineford v. Franklin County, 73 Mo. 279; Clark v. Adair County, 79 Mo. 536; Gilman v. County of Contra Costa, 8 Cal. 52, 68 Am. Dec. 290, and note on pages 294 and 295; Barnett v. County of Contra Costa, 67 Cal. 77, 7 P. 177; Scales v. Chattahoochee County, 41 Ga. 225, Board, etc., v. Riggs, 24 Kan. 255; Fry v. County of Albemarle, 86 Va. 195, 19 Am. St. Rep. 879, 9 S.E. 1004; Watkins v. County Court, 30 W.Va. 657, 5 S.E. 654; Woods v. County Commissioners, 10 Neb. 552, 7 N.W. 269; Board, etc., v. Mighels, 7 Ohio St. 109; Baxter v. Turnpike Co., 22 Vt. 114 (123); Ward v. County of Hartford, 12 Conn. 404; Commissioners v. Martin, 4 Mich. 557, 69 Am. Dec. 333; Adams v. President, etc., 1 Me. 361; Mitchell v. City of Rockland, 52 Me. 118; Altnow v. Town of Sibley, 30 Minn. 186, 44 Am. Rep. 191, 14 N.W. 877; Dosdall v. County of Olmsted, 30 Minn. 96, 44 Am. Rep. 185, 14 N.W. 458; Board, etc., v. Strader, 18 N.J.L. 108; Cooley v. Freeholders, 27 N.J.L. 415; Young v. Commissioner, (S. C.) 11 S.C. L. 537, 2 Nott & McC. 537; Farnum v. Town of Concord, 2 N.H. 392; Eastman v. Meredith, 36 N.H. 284, 72 Am. Dec. 302; Morey v. Town of Newfane, 8 Barb. 645; Heigel v. Wichita Co., 84 Tex. 392, 31 Am. St. Rep. 63, 19 S.W. 562, and note pp. 65 and 66; Ensign v. Board, etc., 25 Hun 20; Albrecht v. Queens County, 84 Hun 399, 32 N.Y.S. 473; Smith v. Board, etc., 46 F. 340; Barnes v. District of Columbia, 91 U.S. 540, 23 L.Ed. 440; Bailey v. Lawrence Co., (S.D.), 5 S.D. 393, 59 N.W. 219; Cooley Const. Lim. (6th ed.), 301; 1 Dillon Munic. Corp., sections 25, 26; 2 Dillon Munic. Corp., sections 996, 997, 999; 4 Am. and Eng. Ency. of Law, pp. 364, 367, and notes; 15 Am. and Eng. Ency. of Law, 1143-4, and cases cited in note 1; 1 Beach Pub. Corp., section 734; Tiedeman Munic. Corp., sections 3, 325.

By common law the inhabitants of a county were required to repair bridges over water-courses. Board, etc., v. Bailey, 122 Ind. 46, 48, 23 N.E. 672; State v. Gorham, 37 Me. 451; State, ex rel., v. Board, etc., 40 N.J.L. 302; State v. Hudson County, 30 N.J.L. 137; Rex v. Oxfordshire, 16 East, 223.

Yet it is settled law that counties were not liable at common law for injuries caused by negligence in failing to keep such bridges in repair. Cones v. Board, etc., 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, etc., supra; Morris v. Board, etc., supra; Board, etc., v. Dailey, supra; Smith v. Board, etc., supra; White v. Board, etc., 129 Ind. 396, 28 N.E. 846; Abbett v. Board, etc., 114 Ind. 61, and cases cited on page 63; Freel v. School City, 142 Ind. 27; Summers v. Board, etc., 103 Ind. 262, 2 N.E. 725; Board, etc., v. Boswell, 4 Ind.App. 133, 30 N.E. 534; Edgerly v. Concord, 62 N.H. 8, 13 Am. St. Rep. 533; Goddard v. Inhab. of Harpswell, 84 Me. 499, 30 Am. St. Rep. 373, 24 A. 958, and note on pp. 398, 402; Howard v. City of Worcester, 153 Mass. 426 (12 L.R.A. 160, 27 N.E. 11), 25 Am. St. Rep. 651; Larrabee v. Inhab. of Peabody, 128 Mass. 561; Clark v. Inhab. of Waltham, 128 Mass. 567; Hill v. City of Boston, 122 Mass. 344, 23 Am. St. Rep. 332; Wixon v. Newport, 13 R.I. 454, 43 Am. Rep. 35; Finch v. Toledo Board of Education, 30 Ohio St. 37, 27 Am. Rep. 414; Lane v. Township of Woodbury, 58 Iowa 462, 12 N.W. 478; Flori v. St. Louis, 69 Mo. 341, 33 Am. Rep. 504; Bigelow v. Inhab. of Randolph, 14 Gray 541; Ford v. School District, etc., 121 Pa. 543 (1 L.R.A. 607, 15 A. 812), and all authorities cited on the proposition concerning bridges.

In Board, etc., v. Chipps, Admr., 131 Ind. 56 (16 L.R.A. 228, 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 and Streets, p. 42."

It was held by this court in Smith v. Board, etc., 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, etc., 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, ex rel., v. Denny, 118 Ind. 449 (4 L.R.A. 65, 21 N.E. 274); White v. Board, etc., 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, etc., supra, and Summers v. Board, etc., supra, are to the same effect. This court held in Board, etc., v. Dailey, 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 court house. 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, etc., 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...