Browder v. City of Henderson

• Decision Date: 17 January 1919
• Citation: 207 S.W. 479,182 Ky. 771
• Parties: BROWDER ET AL. v. CITY OF HENDERSON.
• Court: Kentucky Court of Appeals

207 S.W. 479

182 Ky. 771

BROWDER ET AL. v. CITY OF HENDERSON.

Court of Appeals of Kentucky.

January 17, 1919

Appeal from Circuit Court, Henderson County.

Action by Rowena Browder and another against the City of Henderson. Judgment for defendant, and plaintiffs appeal. Affirmed.

Yeaman & Yeaman and F. J. Pentecost, all of Henderson, for appellants.

B. S Morris, City Atty., of Henderson, for appellee.

QUIN J.

Mrs Rowena Browder and her husband, Thos. H. Browder, instituted this action, seeking damages growing out of the negligence of the employés of the appellee in the management of the City Hospital; it being claimed that she was admitted into the hospital as a patient suffering with some nervous disease or malady, and that about a week after she had entered said hospital the nurse in charge placed a hot water jug to her feet; that the water in said jug was hot, or about the boiling point, and after placing said jug the nurse left the patient and was gone for some time; that because of her weakened condition the patient lapsed into a state of unconsciousness, or dozed off to sleep, and during said time the jug was uncovered and came in contact with her limbs, seriously and severely burning the flesh on both her lower limbs between her knees and feet thereby seriously and permanently injuring her. A demurrer was filed to this petition, and sustained, and an appeal has been taken to this court.

Municipal corporations have a dual capacity, one public and the other private.

"The one class of its powers is of a public and general character, to be exercised in virtue of certain attributes of sovereignty delegated to it for the welfare and protection of its inhabitants or the general public. * * * In the former case its functions are political and governmental, and no liability attaches to it at common law, either for nonuser or misuser of the power, or for the acts or omissions on the part of its officers, or the agents through whom such governmental functions are performed, or the servants employed by such agencies." 28 Cyc. 1257.

This court is committed to the rule that in the performance of these public or governmental duties a municipal corporation cannot be made to respond in damages for the negligent act of its employés; but we have also held that this does not release the individual whose negligence has produced an injury from a suit at the instance of the person injured.

We have held that the city was not liable for the negligence of its employés in a number of instances, and as a matter of convenience we will mention some of them: Elevator in city hall, Schwalk's Adm'r v. City of Louisville, 135 Ky. 570, 122 S.W. 860, 25 L. R. A. (N. S.) 88; city prison, City of Bowling Green v. Rogers, 142 Ky. 558, 134 S.W. 921, 34 L. R. A. (N. S.) 461; workhouse, Braunstein v. City of Louisville, 146 Ky. 777, 143 S.W. 372, 42 L. R. A. (N. S.) 538; fireman, Greenwood v. City of Louisville, 13 Bush, 226, 26 Am. Rep. 263; O'Daly v. City of Louisville, 156 Ky. 815, 162 S.W. 79, 49 L. R. A. (N. S.) 1119; policemen, Pollock's Adm'r v. City of Louisville, 13 Bush, 221, 26 Am. Rep. 260; park employé, Prinz v. Board of Park Commissioners, 127 Ky. 470, 105 S.W. 948, 32 Ky. Law Rep. 359; eruptive hospital, City of Lexington v. Batson's Adm'r, 118 Ky. 489, 81 S.W. 264, 26 Ky. Law Rep. 363; pesthouse, Twyman's Adm'r v. Town of Frankfort, 117 Ky. 518, 78 S.W. 446, 25 Ky. Law Rep. 1620, 64 L. R. A. 572, 4 Ann. Cas. 622; Having v. City of Covington, 78 S.W. 431, 25 Ky. Law Rep. 1617; reform school, Williamson v. Louisville Reform School, 95 Ky. 251, 24 S.W. 1065, 15 Ky. Law Rep. 629, 23 L. R. A. 200, 44 Am. St. Rep. 243; schools, Clark, by, etc., v. City of Nicholasville, 87 S.W. 300, 27 Ky. Law Rep. 974; Ernst v. Town of West Covington, 116 Ky. 850, 76 S.W. 1089, 25 Ky. Law Rep. 1027, 63 L. R. A. 652, 105 Am. St. Rep. 241, 3 Ann. Cas. 882; sewer construction, Smith's Adm'r v. Com'rs of Sewerage, 146 Ky. 562, 143 S.W. 3, 38 L. R. A. (N. S.) 151; Johnson's Adm'r v. Com'rs of Sewerage, 160 Ky. 356, 169 S.W. 827; sprinkling of streets, Kippes v. City of Louisville, 140 Ky. 423, 131 S.W. 184, 30 L. R. A. (N. S.) 1161; Maydwell v. City of Louisville, 116 Ky. 885, 76 S.W. 1091, 25 Ky. Law Rep. 1062, 63 L. R. A. 655, 105 Am. St. Rep. 245; street cleaning, City of Louisville v. Carter, 142 Ky. 443, 134 S.W. 468, 32 L. R. A. (N. S.) 637; street construction, Board of Councilmen of Danville v. Fox, 142 Ky. 476, 134 S.W. 883, 32 L. R. A. (N. S.) 636; police judge, Hershberg v. City of Barbourville, 142 Ky. 60, 133 S.W. 985, 34 L. R. A. (N. S.) 141, Ann. Cas. 1912D, 189. See, also, insane asylum, Leavell v. Western Ky. Asylum for Insane, 122 Ky. 213, 91 S.W. 671, 28 Ky. Law Rep. 1129, 4 L. R. A. (N. S.) 269; Ketterer's Adm'r v. State Board of Control, 131 Ky. 287, 115 S.W. 200, 20 L. R. A. (N. S.) 274; board of health, Allison v. Cash, 143 Ky. 689, 137 S.W. 245.

The appellee, city of Henderson, is a city of the third class, and among its statutory powers it is given the right "to establish and erect hospitals, almshouses, city prisons, workhouses, make regulations for the government thereof, and to acquire and hold land for the purpose, either within or beyond the boundaries of the city." Ky. St. § 3290, cl. 4. We see no reason to depart from the rule fixed and affirmed in the foregoing cases. In the management of its hospital the city is performing a governmental function just as much as in the operation of its city hall elevator, city prison, etc. Indeed, in the case of Allison v. Cash, 143 Ky. 689, 137 S.W. 245, the court held:

"A board of health is an instrumentality of government created for convenience and invested with such powers as will enable it to protect the general health of the people of the state, county, or community over which it is given jurisdiction."

In Kippes v. City of Louisville, supra, the exemption from liability was allowed because the sprinkling of streets is a health regulation.

In Twyman's Adm'r v. Board of Council of Frankfort. 117 Ky. 518, 78 S.W. 446, 25 Ky. Law Rep. 1620, 64 L. R. A. 572, 4 Ann. Cas. 622, suit was brought for damages for the death of plaintiff's intestate, alleged to have been caused by the negligence of its police officers in wrongfully exposing plaintiff's intestate to inclement weather while he had smallpox, by removing him from a comfortable home to a pesthouse, and the court uses this language:

"If the acts complained of in the petition were done by the appellee in the effort to protect the public health, which is a duty that appertains to the city in its public, and not in its corporate or private, capacity, it would seem that there can be no liability upon its part, even though such duty was negligently performed by those to whom its performance was intrusted."

And in Dillon on Municipal Corporations, § 1661, the author thus states:

"The power or even duty on the part of a municipal corporation to make provision for the public health and for the care of the sick and destitute, appertains to it in its governmental or public, and not in its corporate, or, as it is sometimes called, private, capacity. And therefore where a city, under its charter, and the general law of the state enacted to prevent the spread of contagious diseases, establishes a hospital, it is not reasonable to persons injured by reason of the misconduct of its agents and employés therein. * * *"

In Ruling Case Law, vol. 19, § 400, the rule is thus stated:

"Even if the officers employed by a municipal corporation to assist in the preservation of the public health inflict injury to persons or property by their negligence, the corporation is not liable, for the preservation of the public health is a purely public or governmental function. Thus it has been held that a city is not liable * * * for negligently caring for a person confined in its hospital."

In City of Richmond v. Long's Adm'r, 17 Grat. (Va.) 378, 94 Am. Dec. 467, we find the rule thus stated:

"Under such a state of facts, to require the city to answer for the negligence or misconduct of the superintendent, matron, nurses, or attendants of the hospital would seem to me to subvert the fundamental doctrines of the law, as I understand and have sought to expound them. Analogy, I know, is a

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