Bradley v. City of Jackson

• Court: Mississippi Supreme Court
• Writing for the Court: ANDERSON, J.
• Citation: Bradley v. City of Jackson, 153 Miss. 136, 119 So. 811 (Miss. 1928)
• Decision Date: 22 October 1928
• Docket Number: 27188
• Parties: BRADLEY et al. v. CITY OF JACKSON. [*]

119 So. 811

153 Miss. 136

BRADLEY et al. v. CITY OF JACKSON. ^[*]

No. 27188

Supreme Court of Mississippi

October 22, 1928

[Copyrighted Material Omitted]

(En Banc.)

1. MUNICIPAL CORPORATIONS. Municipality is not liable for torts of officers and agents in attempt to enforce ordinances and other regulation adopted under police powers.

Municipality in the exercise of its police powers acts in governmental and not in private capacity, and is not liable for torts of its officers and agents in attempting to carry out and enforce its ordinances and other regulations adopted by it in the pursuance of such powers.

2. MUNICIPAL CORPORATIONS. Municipalities act in their governmental capacity in establishing and regulating schools hospitals, poor-houses, fire departments and similar institutions.

In the establishment and regulation of schools, hospitals poor-houses, fire departments, police departments, jails workhouses and police stations, municipalities act in their governmental capacity.

3. MUNICIPAL CORPORATIONS. Municipalities in regulating prevention of destruction of property by fire or flood, and construction of buildings, act in governmental capacity.

Municipalities, in the adoption and enforcement of regulations for the prevention of destruction of property by fire or flood, and the manner and character of construction of buildings, act in their governmental and not private capacity.

4. MUNICIPAL CORPORATIONS. Ordinances and regulations for preventing destruction of property by fire or flood and for construction of buildings must be reasonable.

All ordinances and regulations by municipality for the prevention and destruction of property by fire or flood, and the manner and construction of buildings, must be reasonable, otherwise they will be void and nonenforceable.

5. MUNICIPAL CORPORATIONS. Reasonableness of ordinances and regulations to prevent destruction of property and for construction of buildings is judicial question.

Question of reasonableness of municipal ordinances and regulations for the prevention of destruction of property by fire or flood, and the manner and character of construction of buildings, is judicial question.

6. PLEADING. Pleading must be strictly construed against pleader.

Rules of pleading require that pleading must be most strictly construed against the pleader.

7. MUNICIPAL CORPORATIONS. Municipality was not liable for torts of agents in carrying out purposes of regulating construction of building over artificial channel of creek.

In regulating manner of construction of building over artificial channel of creek within city limits in order to secure public safety and prevent destruction of property by flood, municipality was acting in its governmental and not in its private capacity, and was not liable for torts of its officers or agents in carrying out its purpose.

8. MUNICIPAL CORPORATIONS. Declaration in action for damages against city because of directing manner of constructing piers of building held demurrable, as showing demand was yielded to without force.

Declaration, in action against city for damages for alleged injury by reason of directing the manner in which plaintiff should construct plers for building which they were erecting, held demurrable in that it showed that plaintiff yielded to unlawful demand for construction of building in certain manner without being forced by city to do so, since they were not required to yield to demands of city's officers and agents if they were without authority of law.

Suggestion of Error Overruled Dec. 10, 1928.

APPEAL from circuit court of Hinds county, First District, HON. W. H. POTTER, Judge.

Action by J. H. Bradley and another, doing business as Bradley & Bradley, against the city of Jackson. Judgment of dismissal and plaintiffs appeal. Affirmed.

Affirmed.

Robertson & Campbell and Ross R. Barnett, for appellants.

The demurrers to the declarations presented questions which depend upon the facts of each particular case, and which could not properly be decided on demurrer. Whether we base the liability of the city of Jackson upon the acts of its agents and officers in exercising its jurisdiction over streets, streams and bridges, or in exercising their jurisdiction as building inspectors, in an attempt to enforce the provisions of the building code of the city of Jackson, the liability of the city in the case at bar could not be justly and rightfully determined on demurrer. The most that could be argued by counsel for appellee is that the question of the capacity in which said officers and agents of appellee were acting, in committing the acts complained of, is a question of fact which, in order to determine, it would be necessary to have before the court and jury all of the facts and surrounding circumstances in connection with the action of appellee acting by and through its said officers and agents. As was said by this court in Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329, "to a very large extent, this question can only be settled by the facts of each particular case, so variant are the conditions under which this question arises." See, also, Denver v. Davis, 86 P. 1027, 6 L. R. A. (N. S.) 1013.

Bringing a case within the definition of a governmental function is an affirmative defense which must be clearly proven by appellee, and this question cannot rightly be decided upon demurrer. The case should be reversed, and the court should hear all the testimony, and then it would be proper to decide whether or not appellants had made out a case, and if they had not, the court would be justified in granting a peremptory instruction. See McWilliams v. Rome, 75 S.E. 645.

The officers and agents of appellee, the city of Jackson, in commuting the negligent acts complained of, were acting on behalf of appellee in the exercise of its jurisdiction over its streets, streams and bridges and attempting to perform its duty to preserve and protect the same, for which acts appellee is liable to respond in damages. It is well settled in this state that a municipality is liable for damages in an action of tort for negligence in caring for and maintaining its streets, and for caring for and maintaining artificial streams and bridges. See Byrnes v. City of Jackson, 140 Miss. 656, 105 So. 861; Cohea v. Coffeeville, 69 Miss. 561, 13 So. 668; Stainbach v. Meridian, 79 Miss. 447, 30 So. 607. The action of the appellee in making certain reservations, exceptions and restrictions as to the use of the property abutting upon the artificial channel of Town Creek, and directing the kind and size of piers to support buildings to be construed thereon, clearly showed that, the city engineer and building inspectors were not acting merely in an attempt to see that the provisions of the building code were complied with by appellants, but were in their jurisdiction of, and supervision over, streets, streams and bridges, attempting to see that the provisions of the deed which vested the title to said property out of appellee, the city of Jackson, were complied with, for the protection and preservation of Lamar street, and the artificial channel of Town Creek. City building inspectors and the engineer of the city of Jackson, claiming to have the right to direct the manner of construction of the said buildings, objected to same, and thereafter caused the injury and damage, as complained of, and particularly described in appellants amended declaration. The amended declaration sufficiently shows that the acts of negligence of the agents and officers of appellee occurred in the exercise of the jurisdiction of appellee to protect and preserve its streets, streams and bridges, and for which acts the appellee is clearly liable to respond in damages. Metzroth v. City of New York, 150 N.E. 519.

Is the building department or the building inspector and city engineer of a municipality, in negligently and improperly directing the manner of construction of a building, acting in the performance of governmental duties or in the performance of corporate or ministerial duties? The problem that confronts us is the application of the particular facts to the rules and tests announced by this court, and by other courts and text-writers as to the question of whether or not a particular state of facts brings a case within the definition of the exercise of governmental functions, or within the definition of the exercise of corporate or ministerial functions. To a very large extent, these questions can only be settled by the facts of each particular case, so variant are the conditions under which this question arises. In Pass Christian v. Fernandez, 100 Miss 76, 56 So. 329, the court said: "The public or governmental duties of a city are those given by the state to the city as a part of the state sovereignty, to be exercised by the city for the benefit of the whole public, living both in and out of the corporate limits. All else is private duty, and for any negligence on the part of the agents or employees of the municipality in the discharge of any of the private duties of the city, the city is liable for all damage just as an individual would be." In this case the city was held liable for an injury caused by the driver of a city cart, engaged in hauling dirt and trash for the municipality. See also Semple v. City of Vicksburg, 62 Miss. 63. In Gulfport v. Sheppard, 116 Miss. 439, 77 So. 193, the court held that the city was not liable for an act of an employee of the city in negligently failing to properly fasten the top of a cess pool cleaned out by him. This case can be distinguished from the case at bar, in that the cleaning of cess pools was for the protection of the health of the whole public, and not the inhabitants of the municipality alone. The best...