Bucholz v. City of Sioux Falls, 9645

• Decision Date: 15 August 1958
• Docket Number: No. 9645,9645
• Citation: 91 N.W.2d 606,77 S.D. 322
• Parties: Albert BUCHOLZ, as Special Administrator of the Estate of Dennis A. Bucholz, Deceased, Plaintiff and Respondent, v. The CITY OF SIOUX FALLS, a Municipal Corporation, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 606

91 N.W.2d 606

77 S.D. 322

Albert BUCHOLZ, as Special Administrator of the Estate of Dennis A. Bucholz, Deceased, Plaintiff and Respondent, v. The CITY OF SIOUX FALLS, a Municipal Corporation, Defendant

and Appellant.

No. 9645.

Supreme Court of South Dakota.

Aug. 15, 1958.

Rehearing Denied Nov. 25, 1958.

John E. Burke, Robert S. Golden, Sioux Falls, for defendant and appellant.

Henry C. Mundt, Acie W. Matthews and Lacey, Parliman & Heuermann, Sioux Falls, for plaintiff and respondent.

ROBERTS, Judge.

This action was commenced by Albert Bucholz as special administrator to recover damages for the alleged wrongful death of his minor son. From a judgment on a verdict in the amount of $7,000, defendant city appeals.

The City of Sioux Falls had some time prior to 1950 constructed, and thereafter maintained, a pistol and rifle range in the basement of the city hall for the use of the members of its police force for target practice. On Monday evening, November 21, 1955, plaintiff's 16 year old son and four companions, ages fifteen to seventeen, with the permission of police officers, but without supervision, were there engaged in target shooting. Dennis Bucholz was accidentally shot and killed by the discharge of a rifle in the hands of one of his companions. Plaintiff contends that defendant city failed to provide adequate supervision and to exercise reasonable care for the protection of youthful invitees and permittees using the rifle range.

It is undisputed that groups of boys twelve years of age and over had for several years been permitted by the Chief of Police to use the range for target shooting. The program was under the auspices of the Recreation Council of the city and was conducted according to rules of the National Rifle Association by supervisors employed by the council. Kenneth Chamberlain witness for the city, testified that since May 1954 he had been Chief of Police of the City of Sioux Falls; 'that the range was for use of personnel other than the Police Department provided that they were supervised, and that * * * use of the range be planned for in advance so that the supervisor could be checked to see whether he was adequate'; that he had appeared and made that statement in substance on a local television program; that a key placed on a hook beneath the sergeant's desk was to be handed only to persons who were on a prepared list; and that if the officers in charge permitted the decedent and his companions to use the rifle range they did so contrary to instructions.

It appears in addition to the facts stated that the five boys went to the Police Department in the city hall and asked the desk sergeant if they could use the range for target shooting. The officer asked them if they had the consent of their parents and what kind of guns they had. The desk sergeant, with consent of the lieutenant in charge, gave the boys the key to the range. After getting their rifles which they had left in their car, the boys unlocked the door and entered the range and, unattended and unsupervised, engaged in target shooting. A rifle as we have stated in the hands of one of the boys accidentally discharged and the bullet therefrom struck Dennis Bucholz near the left temple, killing him almost instantly.

Counsel for the city contend (1) that since the act of the police officers in granting permission to use the rifle range was without authority and contrary to specific instructions of the Chief of Police, the city is not liable and (2) that the city was immune from liability for the reason that the power and the duty to maintain a police force and to provide a target range primarily for the use of the police force is governmental.

The law is settled by numerous decisions of this court that a municipal corporation is not liable for the negligence of its officers or agents when in performance of a governmental function, but is liable in the same manner as an individual or corporation for tort committed in its corporate or proprietary capacity. O'Rourke v. City of Sioux Falls, 4 S.D. 47, 54 N.W. 1044, 19 L.R.A. 789; Jensen v. Juul, 66 S.D. 1, 278 N.W. 6, 115 A.L.R. 1280, and cases cited; State ex rel. Hurd v. Blomstrom, 72 S.D. 526, 37 N.W.2d 247; Burkhard v. City of Dell Rapids, 76 S.D. 56, 72 N.W.2d 308. The doctrine of respondeat superior under which an employer is liable for the negligent acts of his employees in the course of their employment applies in a proper case to the acts of municipalities done in their corporate or proprietary capacity and liability exists, but not to those which they perform as functions of government delegated by the state. McQuillin, Municipal Corporations, 3rd Ed., § 53.65; Gebhardt v. Village of La Grange Park, 354 Ill. 234, 188 N.E. 372; Florey v. City of Burlington, 247 Iowa 316, 73 N.W.2d 770; Hill v. Housing Authority of City of Allentown, 373 Pa. 92, 95 A.2d 519. As was noted in Jensen v. Juul, supra, a municipality is not in any instance liable for tortious acts which are wholly outside of the powers conferred upon it. It is, however, liable for the torts of officers and agents acting within the general scope of its corporate powers and in the exercise of proprietary functions even though their acts in a particular case are unauthorized or contrary to specific instructions. If this were not the rule as suggested by the New York court in Augustine v. Town of Brant, 249 N.Y. 198, 163 N.E. 732, a municipal corporation could never be held liable for tort for the reason that no municipal corporation is authorized to do wrongful acts.

While the distinction between governmental and corporate or proprietary functions is in nearly all jurisdictions recognized in determining the tort liability of municipalities difficulty often arises in the application of the rule and holdings have not been uniform and consistent. The Supreme Court of the United States in City of Trenton v. State of New Jersey, 262 U.S. 182, 43 S.Ct. 534, 538, 67 L.Ed. 937, 29 A.L.R. 1471, in this connection said: 'The distinction between the municipality as an agent of the state for governmental purposes and as an organization to care for local needs in a private or proprietary capacity has been applied in various branches of the law of municipal corporations. The most numerous illustrations are found in cases involving the question of liability for negligent acts or omissions of its officers and agents. See Harris v. District of Columbia, 256 U.S. 650, 41 S.Ct. 610, 65 L.Ed. 1146, 14 A.L.R. 1471, and cases cited. It has been held that municipalities are not liable for such acts and omissions in the exercise of the police power, or in the performance of such municipal faculties as the erection and maintenance of a city hall and courthouse, the protection of the city's inhabitants against disease and unsanitary conditions, the care of the sick, the operation of fire departments, the inspection of steam boilers, the promotion of education and the administration of public charities. On the other hand, they have been held liable when such acts or omissions occur in the exercise of the power to build and maintain bridges, streets and highways, and waterworks, construct sewers, collect refuse and care for the dump where it is deposited. Recovery is denied where the act or omission occurs in the exercise of what are deemed to be governmental powers, and is permitted if it occurs in a proprietary capacity. The basis of the distinction is difficult to state, and there is no established rule for the determination of what belongs to the one or the other class. It originated with the courts. Generally it is applied to escape difficulties, in order that injuries may not result from the recognition of technical defenses based upon the governmental character of such corporations.'

In the early case of O'Rourke v. City of Sioux Falls, supra, upon which counsel for the city principally rely, this court held that a municipality is not liable for the failure of police officers to enforce an ordinance. There a cannon was fired in the streets of the city by persons with permission of the police and the plaintiff was injured by a wadding fired from the cannon. It was held that the city was not liable. In the course of the opinion it was said [4 S.D. 47, 54 N.W. 1046]: 'In the enactment of ordinances, and in the appointment of officers and agents for their enforcement, the municipality is exercising a governmental authority, * * *.'

In Walters v. City of Carthage, 36 S.D. 11, 153 N.W. 881, 882, the defendant municipality, despite the fact that fire prevention is a governmental function, was held liable for maintaining a door on a fire engine house in such a manner that it fell and injured a child on the sidewalk in front of the building. This court said: 'It is well settled that municipal corporations have certain powers which are discretionary or judicial in character, and also certain powers which are ministerial. They will not be held liable in damages for the manner in which they exercise in good faith their discretionary powers of a public character, but are liable for damages caused by their negligence when their duties are ministerial. A municipal corporation acts judicially when it selects a plan for some public improvement; but as soon as it begin to carry out the plan, it acts ministerially and is bound to see that the work is done in a safe manner. 2 Dill.Mun.Corp. §§ 949, 832, 1048. Johnston v. Dist. of Columbia, 118 U.S. 19, 6 S.Ct. 923, 30 L.Ed. 75; City of Chicago v. Seben, 165 Ill. 379, 46 N.E. 244, 56 Am.St.Rep. 248. A municipal corporation is performing a ministerial duty in maintaining a fire station and is liable in damages for neglecting to make the same safe. Bowden v. Kansas City, 69 Kan. 587, 77 P. 573, 66 L.R.A. 181, 105 Am.St.Rep. 187, 1 Ann.Cas. 955; Kies v. City of Erie, 169 Pa. 598, 32 A. 621.' Among other decisions drawing a distinction between legislative, judicial and...