Chardkoff Junk Co. v. City of Tampa

• Decision Date: 21 July 1931
• Parties: CHARDKOFF JUNK CO. v. CITY OF TAMPA.
• Court: Florida Supreme Court

135 So. 457

102 Fla. 501

CHARDKOFF JUNK CO. v. CITY OF TAMPA.

Florida Supreme Court, Division A.

July 21, 1931

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Action by the Chardkoff Junk Company against the City of Tampa. Judgment for defendant, and plaintiff brings error.

Reversed.

COUNSEL

Campbell & McLean, of Tampa, for plaintiff in error.

Karl E Whitaker and H. Lane Coachman, both of Tampa, for defendant in error.

OPINION

BUFORD C.J.

Plaintiff in error was plaintiff in the court below, and filed against the defendant in error. Its amended declaration was in four counts. The first count of the amended declaration was as follows:

'(1) Plaintiff alleges that on the --- day of November, 1929, it owned and operated a certain warehouse located on Maryland and Ruby Street in the City of Tampa, Hillsborough County Florida, which contained certain merchandise a list of which together with its value is hereto attached as exhibit 'A', and made a part hereof as if fully set out herein.

(2) That the defendant on the --- day of November, 1929, was in possession of, and had under its control and was then operating in a section in which there were located many frame houses covered by inflammable materials, a certain incinerator for the purpose of burning and consuming the refuse of said City, on First and Maryland Avenue in the City of Tampa, Hillsborough County, Florida; that in the operation of said incinerator materials were placed therein which under the generation of heat were artificially forced from the bottom and out of the top or smokestack of the incinerator by means of the draft created; that when the incinerator was in operation burning coals, soot, cinders, sparks, pieces of paper, embers and burning substances were carried and thrown out of the top or smokestack of said incinerator into the air, and carried, when the wind was blowing from a northerly direction over to and upon the premises of the plaintiff as the defendant well knew or could have known by the exercise of reasonable diligence; that the smokestack to the said incinerator, being located eighty yards from the plaintiff's warehouse, and was not built with sufficient height or capacity nor properly screened with spark arresters; thereby causing and permitting burning coals, soot, cinders, sparks, pieces of paper, embers and burning substances to be emitted from the top of smokestack of said incinerator, any by said wind carried over to and upon the aforesaid premises and warehouse of the plaintiff which was thereby set on fire and completely destroyed together with its contents.

'(3) Wherefore, plaintiff sues and claims damages of the defendant in the sum of $20,000.00.'

The second count of the amended declaration was like the first count, except that, in lieu of the words, 'that the smokestack to the said incinerator being located eighty yards from the plaintiff's warehouse, and was not built with sufficient height or capacity nor properly screened with spark arresters, thereby causing and permitting burning coals, soot, cinders, sparks, pieces of paper, embers and burning substances to be emitted from the top or smokestack of said incinerator, and by said wind carried over to and upon the aforesaid premises and warehouse of the plaintiff which was thereby set on fire and completely destroyed together with its contents,' of the first count, the following language was used in the second count: 'That the defendant in the operation and use of the furnaces and smokestack of said incinerator was negligent in that more fuel and materials was placed in said incinerator than the said incinerator could consume and properly burn and as a result thereof burning coals, soot, cinders, sparks, pieces of paper, embers and burning substances from the smokestack of said incinerator to the premises and warehouse of the plaintiff, thereby burning and destroying same.'

The third count was like the first count, except that it by apt words charged that the operation of the incinerator in the manner in which it was operated constituted a menace to the public and a nuisance.

The fourth count was like the second count except that it alleged that the use and operation of the incinerator in the manner alleged constituted a menace to the public and a nuisance.

There was attached to the amended declaration a bill of particulars showing the items alleged to have been lost, together with the value thereof.

There was a motion for compulsory amendment to the amended declaration. The motion sought to require the plaintiff to amend each count of his declaration to show more definitely in what respect the defendant was negligent or failed to do its duty in the construction or the maintenance of the incinerator or any part thereof. With the motion for compulsory amendment there was filed a demurrer to the amended declaration. The demurrer presented the following questions:

(a) Is the operation of an incinerator by a city within its corporate limits an exclusive governmental function in the conduct and operation of which the city cannot be held to create a nuisance?

(b) Is the city of Tampa liable for injuries caused by the negligent operation of an incinerator when it is not alleged that in so doing it maintains a nuisance?

(c) Is the notice to the city attorney a prerequisite for filing a suit against the city of Tampa for damages caused by the negligent operation of an incinerator?

Motion for compulsory amendment was denied, and demurrer was sustained to each count of the declaration. By sustaining the demurrers the court in effect answered question (a) in the negative, but held the declaration bad because it did not allege notice of injury to the city attorney, as is required by the city charter, and answered question (b) in the affirmative.

If the city of Tampa is not immune from liability for the damage occasioned by the negligent operation of its incinerator in the manner alleged in each count of the amended declaration upon the theory that the maintenance and operation thereof is a governmental function, then the city is amenable to the same legal rules of liability which would apply to any individual or corporation, and the enunciation of this court in the case of Benedict Pineapple Co. v. A. C. L. Ry. Co., 55 Fla. 514, 46 So. 732, 733, 20 L. R. A. (N. S.) 92, would apply. In that case it was said:

'A declaration, which states that the defendant railroad company 'so carelessly and negligently managed and operated one of its locomotives * * * that fire escaped therefrom and set fire to the canvas cover or cloth with which a pinery belonging to the plaintiff and situated near to the track of the defendant * * * was covered, and burned a large part, to wit, about one acre of said cover,' and alleges damages in a stated amount, is sufficient to authorize a recovery of general damages or such as necessarily result from the burning of the canvas cover to the extent of its value within the stated amount.'

In 43 C.J. 182, the editor said: 'In its public character, a municipal corporation is the agent of the state, acting as an arm of the sovereignty of the state created for the convenient administration of the government, exercising to the extent that they have been granted, the governmental functions and powers of the state. It executes the functions and possesses the attributes of sovereignty which have been delegated by the legislative department of government; municipal corporations are primarily created to perform the functions of local self-government; they chiefly administer the local affairs of the territory incorporated. Governmental functions are those conferred to imposed upon the municipality as the local agency of limited and prescribed jurisdiction, to be employed in administering the affairs of the state, and promoting the public welfare generally. While in a certain sense any municipal function might be regarded as governmental, when properly applied the term 'governmental functions' should be limited to legal duties imposed by the state upon its creature, which it may not omit with impunity but must perform at its peril. Governmental functions are served by the police power and power of eminent domain; and also by those maintaining and operating a fire department, those furthering the administration of justice, and such other powers as are to be exercised by the corporation for the public weal, in or for the exercise of which the municipality receives no compensation or particular benefits. Whether the function of caring for and keeping in repair the public highways within the municipality is governmental or municipal has been often mooted and diversely decided.'

And continuing to define 'municipal functions,' the editor says: 'All functions of a municipal corporation, not governmental, are strictly municipal. Municipal functions are those granted for the specific benefit and advantage of the urban community embraced within the corporated boundaries. Logically all those are strictly municipal functions which specially and peculiarly promote the comfort, convenience, safety, and happiness of the citizens of the municipality, rather than the welfare of the general public. Under this class of functions are included, in most jurisdictions, the proper care of streets and alleys, parks and other public places, and the erection and maintenance of public utilities and improvements generally. In this character the corporation stands for the community in the administration of local affairs wholly beyond the sphere of the public purposes for which its governmental powers are conferred. On the other hand, a municipal corporation in its private or quasi-private...