Brummett v. City of Jackson, 37865

• Decision Date: 12 March 1951
• Docket Number: No. 37865,37865
• Parties: BRUMMETT v. CITY OF JACKSON.
• Court: Mississippi Supreme Court

Page 52

51 So.2d 52

211 Miss. 116

BRUMMETT v. CITY OF JACKSON.

No. 37865.

Supreme Court of Mississippi, Division B.

March 12, 1951.

Forrest Jackson, Jackson, for appellant.

E. W. Stennett, and Gillespie, Neal & Williams, all of Jackson, for appellee.

ROBERDS, Presiding Judge.

Appellant, in her declaration herein, averred that in May, 1949, the City of Jackson was, and for nine years prior thereto had been, maintaining and operating an airport known as 'Municipal Airport Hawkins Field'; that as part of such operation it offered and furnished to the public parking space and tie-down service for storage of airplanes using that field, for which it made a charge of $7.50 per month, and, in addition, reaped a profit from refueling the planes; that in May, 1949, she orally made such a contract for storage of her plane, paying the consideration therefor; that as a result the City owed her the duty to use reasonable care to properly tie-down and preserve the plane; that, in violation of that duty, it negligently fastened the plane by the use of rotten rope loosely tied, as a result of which negligence the plane was blown over and practically demolished. She asked for judgment for the damage.

Defendant, in its answer, while admitting it had been and was operating the airport, and was furnishing the storage service, and had made the contract with plaintiff, all as stated in the declaration, set up in bar of the action, first, that it had no power or authority to make such a contract; and, second, if it did have such power, that it was not liable for negligence because the City had relieved itself of liability by so declaring in an ordinance it had previously adopted and by a notice it had posted at the field.

These questions were heard by the trial judge upon the declaration and the answer, no proof being taken. He sustained the pleas and rendered judgment thereon for the City. Mrs. Brummett appeals.

We now pass upon the power of the municipality to make the contract. Chapter 63, Laws of Mississippi, 1928, empowers the municipalities of Mississippi, in their discretion, 'to acquire by condemnation, donation, lease or purchase land to be used as an airport or landing place for airplanes. And they may erect such buildings thereon as they may deem necessary for such purpose, and equip and maintain such airport * * * and such airport may be situated beyond the limits of such municipality * * *', and they were authorized 'to make and enforce such regulations and rules as they may deem necessary for the proper control of such air port, including the right to charge reasonable fees for the use thereof', with the further power to issue bonds for the foregoing purposes. Chapter 1, Title 28, Miss.Code 1942, brings forward and enlarges upon the foregoing powers, the principal additional powers being the right to contract with the United States Government, or others, in time of war, for the operation of the airports in the training of aviators, and the authority to adopt zoning regulations within an area of fifteen hundred feet beyond the limits of the field, as safety measures for planes landing upon and taking off from the field, with the further authority to 'acquire by agreement, purchase or condemnation the right to place and maintain obstruction markers and/or lights upon any buildings, structures or obstructions, in such areas, including the right to lay and maintain conduits and wires to such obstructions markers and/or lights in such areas.'

Appellee contends that,...