Bobo v. City of Kenton

• Decision Date: 12 June 1948
• Citation: 212 S.W.2d 363,186 Tenn. 515
• Parties: BOBO v. CITY OF KENTON.
• Court: Tennessee Supreme Court

212 S.W.2d 363

186 Tenn. 515

BOBO v. CITY OF KENTON.

Supreme Court of Tennessee.

June 12, 1948

Error to Circuit Court, Obion County; E. A. Morris, Judge.

Action by Roy Bobo, Jr., against the City of Kenton to recover for injuries sustained when plaintiff was allegedly shot by defendant's chief of police. From a judgment for defendant, the plaintiff brings error.

Judgment affirmed.

Miles & Miles and John W. Hart, all of Union City for plaintiff in error.

Taylor Adams & Freeman, of Trenton, for defendant in error.

NEIL Chief Justice.

This suit originated in the circuit court of Obion County, in which the plaintiff, Roy Bobo, Jr., sought to recover damages for personal injuries against the City of Kenton.

The declaration alleged, in substance, that on the night of August 24, 1946, at about midnight, he was driving his truck in a lawful manner and was approached by the chief of police one Corb Barner, who made complaint about a 'muffler' on the truck. Following this discussion, which was not in the least unfriendly, it is alleged that 'they shook hands' and thereupon the said Barner 'backed away from the truck, looked at him and stated: 'I think I am going to shoot hell out of you anyway''; that he drew out a 38 special and 'shot the plaintiff through the right chest, inflicting painful, serious and permanent injuries,' etc.

It is further alleged that the City of Kenton for two or three months prior to August 25, 1946, had received numerous complaints about the said Corb Barner and had been notified by a number of persons (naming them), including a half brother of Barner, 'that the said Corb Barner was mentally unstable and a dangerous man to be retained in the office of Chief of Police.'

The City of Kenton demurred to the declaration upon the ground that the employment of the chief of police, and his retention in office, was a governmental function and hence there was no liability for his negligent and wrongful acts.

The trial judge sustained the demurrer and plaintiff appealed to this Court. His only assignment of error complains that the court committed error 'in holding that the plaintiff's declaration did not state a cause of action against the defendant.'

Learned counsel for the plaintiff have failed to cite any authority in support of their contention that 'the City of Kenton must be held accountable in keeping an insane man in this position when they had received numerous complaints not only of his insanity but of his dangerous character.

We have searched the books in vain in an effort to find some authority to support the above contention. All cases, without exception, hold that the maintenance of a police force by a municipality is a governmental function and hence is not liable for torts committed by its peace officers.

We are not unmindful of many criticisms of the doctrine particularly in Brooklyn Law Review, April 22, 1932, entitled 'Should the Liability of Municipalities in Tort be Extended to Include Injury and Damage Caused in the Negligent Performance of a Governmental Function?' Also in 75 A.L.R., p. 1196, where the annotator says: 'The whole doctrine of...