Burke v. City of S. Omaha

• Decision Date: 03 October 1907
• Docket Number: No. 14,885.,14,885.
• Citation: 113 N.W. 241,79 Neb. 793
• Parties: BURKE v. CITY OF SOUTH OMAHA.
• Court: Nebraska Supreme Court

79 Neb. 793

113 N.W. 241

BURKE

v.CITY OF SOUTH OMAHA.

No. 14,885.

Supreme Court of Nebraska.

Oct. 3, 1907.

Syllabus by the Court.

The making, improving, and repairing of streets by a municipal corporation relate to its corporate interest only, and it is liable for the wrongful or negligent acts of its agents in performing such duties. City of Omaha v. Croft, 60 Neb. 57, 82 N. W. 120.

Commissioners' Opinion. Department No. 1. Appeal from District Court, Douglas County; Sears, Judge.

Action by John W. Burke against the city of South Omaha. Judgment for plaintiff. Defendant appeals. Affirmed.Lambert & Winters, for appellant.

H. C. Murphy and Benj. S. Baker, for appellee.

DUFFIE, C.

Plaintiff was employed by the defendant city in repairing one of its streets. Through the negligence of the foreman in charge of the work he was injured by the action of an uncontrollable and vicious team, being thrown into a pit or washout some 30 feet in depth which was being filled, and he sustained injuries to his damage, fixed by the jury at $2,387.50. Upon the return of the verdict defendant filed a motion for judgment non obstante veredicto, under section 1430, Cobbey's Ann. St. 1903. This motion was overruled, and defendant appeals.

No complaint is made of the amount of damages awarded or of errors committed upon the trial, and the only question submitted for our determination is whether or not, under the facts above set out, the city is liable to an employé engaged in the repair of its streets for negligence resulting in injury to the employé. In other words, does the doctrine of respondeat superior apply? Under its charter general power is conferred upon the defendant city to create improvement districts for the purpose of improving the streets, boulevards, alleys, or other public grounds therein by paving, repaving, macadamizing, curbing, guttering, grading, or changing the established grade in such manner as may be determined upon. Section 1402, Comp. St. 1905. It is also empowered to open, vacate, widen, and narrow streets, avenues, and alleys within the city; to exercise the right of eminent domain, and appropriate private property for the use of the city for streets, alleys, avenues, and other public purposes. Section 1432, Comp. St. 1905. It is to control and direct all work upon the public streets, except as otherwise provided. Section 1430, Comp. St. 1905. It is to care for, supervise, and control all public highways, bridges, streets, alleys, public squares, and commons within the city, and cause the same to be kept open and in repair and free from nuisance. Section 1455, Comp. St. 1905. It might be further observed that the state has reserved no control of the streets in cities, and has relieved the counties of all responsibilities for the repair or good order of streets in cities and incorporated towns. From this it will be seen that the defendant city has absolute care and control of the streets within its limits, that its duty is to keep them in repair and safe for travel, and whether, when engaged in opening, working, and repairing its streets, it is engaged in a corporate capacity, or in a governmental duty, is the question to be solved, and upon which its liability in this case depends.

The state cannot, without its consent, expressed through legislation, be sued for injuries resulting from an act done in the exercise of its lawful governmental powers and pertaining to the administration of government. When this power is exercised, as it must be, through an agent, the agent cannot be sued for injuries resulting from a strict performance of the agency. In such case the act is regarded as the act of the state, and not of the agent, who is the mere instrument of the state, and nothing more; and, if the agent employs servants in the performance of the act, he cannot be sued for injuries resulting from the negligence of the servants. The rule of respondeat superior does not apply. The state, and not the agent, is the real superior. But when the state, by way of grant or special privilege, authorizes private persons in part for their personal benefit to perform such governmental acts, these persons are not clothed with this immunity of mere agents of the state, although the authority given them may include the exercise of power such as that of eminent domain, which can only be exercised by the state or its agents. Hourigan v. City of Norwich, 77 Conn. 358, 59 Atl. 487. Municipal corporations are agents of the state in the exercise of certain governmental powers. The preservation of the health and peace of its inhabitants and fire protection afforded the property owner are governmental functions. Gillespie v. City of Lincoln, 35 Neb. 34, 52 N. W. 811, 16 L. R. A. 349;Village of Verden v. Bowman, 97 N. W. 299. So, also, where an independent officer or board is created by state law to perform certain duties within the corporate limits of a city, and over whose action the city has no control, the city will not be liable for the acts of such officer or board, as their acts are governmental in their character. Murray v. City of Omaha, 66 Neb. 279, 92 N. W. 299, 103 Am. St. Rep. 702.

But municipal corporations are also treated in certain respects as private corporations; and this, when they are authorized by way of special privilege to perform certain acts in part for the special benefit of the corporation and its inhabitants, which, if performed by the state, would undoubtedlybe an exercise of its governmental power. When the state imposes upon an incorporated city the absolute duty of performing some act which the state may lawfully perform, and pertaining to the administration of government, the city, in the performance of that duty, may be clothed with the immunities belonging to the mere agent of the state; but, when the city is merely authorized by way of special privilege to perform such an...