City of Anderson v. East
| Decision Date | 25 January 1889 |
| Docket Number | 13,458 |
| Citation | 19 N.E. 726,117 Ind. 126 |
| Parties | The City of Anderson et al. v. East |
| Court | Indiana Supreme Court |
From the Madison Circuit Court.
The judgment against the city of Anderson is reversed, and that against the appellant Doxey is affirmed.
E. B Goodykoontz, F. P. Foster, C. L. Henry, H. C. Ryan and E. P Schlater, for appellants.
W. R Pierse and C. B. Gerard, for appellee.
The defendants severed in their defences in the trial court and here separately assign errors. Consequently there are two branches of the case, involving essentially different questions: one in which the rights of the city of Anderson are involved, and another which involves the rights of the appellant Doxey. It is proper, as well as convenient, to first consider and dispose of that branch of the case in which the rights of the municipal corporation are involved.
The judgment against the city of Anderson rests entirely upon the second paragraph of the complaint, and, if that is bad, the judgment is entirely destitute of foundation. Our first step, therefore, is to ascertain and determine whether the second paragraph of the appellee's complaint states a cause of action against the city of Anderson.
That paragraph of the complaint contains these material facts:
On the 13th day of November, 1884, the plaintiff was the owner of a building in the city of Anderson. Sixteen feet distant from the plaintiff's building was a large brick structure with walls thirty feet in height. The building was owned by the appellant Charles T. Doxey. On the night of November 13th, 1884, Doxey's building was burned, but the brick walls remained standing. Doxey's building stood on the line of a public alley, sixteen feet in width. The cornice of the Doxey building projected over this alley. The cornice and wall of the burnt building fell upon the plaintiff's building and destroyed it. The city knew that the wall was dangerous and likely to fall, and was notified of that fact, as was Doxey. Notwithstanding the notice and knowledge, the defendants negligently permitted the wall, weakened and made dangerous by the fire, to remain unsupported for nine days, when it fell, crushing the plaintiff's building.
Our judgment is that no cause of action is stated against the city. A municipal corporation is an instrumentality of government and is not liable for a failure to exercise legislative or judicial powers, nor for an improper or negligent exercise of such powers. Wheeler v. City of Plymouth, 116 Ind. 158, 18 N.E. 532; Dooley v. Town of Sullivan, 112 Ind. 451 (2 Am. St. Rep. 209, 14 N.E. 566); City of Terre Haute v. Hudnut, 112 Ind. 542, 13 N.E. 686; Faulkner v. City of Aurora, 85 Ind. 130; City of Lafayette v. Timberlake, 88 Ind. 330; McDade v. Chester City, 117 Pa. 414 (2 Am. St. Rep. 681, 12 A. 421); McArthur v. City of Saginaw, 58 Mich. 357 (55 Am. Rep. 687, 25 N.W. 313); Agnew v. City of Corunna, 55 Mich. 428 (54 Am. Rep. 383, 21 N.W. 873); Hines v. City of Charlotte, 72 Mich. 278, 40 N.W. 333; Kiley v. City of Kansas, 87 Mo. 103 (56 Am. Rep. 443); Hubbell v. City of Viroqua, 67 Wis. 343 (58 Am. Rep. 866, 30 N.W. 847); Robinson v. Greenville, 42 Ohio St. 625 (51 Am. Rep. 857, and note).
The authorities we have collected, to which many more might easily be added, illustrate all phases and postures of the general subject; but in one thing all unite, and that is in affirming that no recovery can in any event be had where the negligence of the municipal corporation consists in failing to perform a legislative, judicial, or discretionary duty, or in simply performing such a duty in an improper method. The decision in Kiley v. City of Kansas, supra, is directly in point, and applies the rule we have stated to a case in principle precisely like the one before us.
A recovery can be had against a municipal corporation only where it negligently performs or negligently fails to perform a duty in its nature ministerial, and then only in cases where the ministerial duty is imposed by law. There must, in every case, be a duty, since where there is no duty there can be no negligence. It is, indeed, impossible to conceive a case where negligence can exist independent of a duty. It was, therefore, incumbent upon the appellee to show a ministerial duty and its wrongful breach. This he has not done. A municipal corporation owes a duty to those who use its streets to exercise ordinary care to make them safe for passage. It is not without hesitation that some of the courts have assented to this rule, and there once was reason for doubt, for, as a municipal corporation is an instrumentality of government, it is difficult to perceive upon what principle it can be sued, while the sovereignty of which it forms a part enjoys complete immunity. But the question is now closed. Municipal corporations are liable for a negligent breach of a ministerial duty. They are, however, liable only to one to whom they owe that duty, and to him only when the duty concerns some thing over which that duty extends. In many of the cases we have cited it is held that municipal corporations owe a duty only to persons using their streets and to them only owe a duty to keep the streets safe for ordinary travel. In order to create a liability the breach of duty must be such, many of the cases say, as to make the streets insufficient, or unsafe, for ordinary travel. We can conceive of no principle and we know of no authority upon which it can be held that a municipal corporation is under a duty to protect the property of a citizen from injury from the walls of an adjacent building belonging to a citizen which the owner's negligence has permitted to become dangerous. Municipal corporations are not charged with the duty of protecting private property. There is, certainly, nothing in the statute which imposes such a duty...
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