City of Bowling Green v. Bandy

Decision Date27 March 1925
Citation270 S.W. 837,208 Ky. 259
PartiesCITY OF BOWLING GREEN v. BANDY.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Warren County.

Action by Raymond Bandy against the City of Bowling Green. From judgment for plaintiff, defendant appeals. Reversed, with directions.

P. E Dixon and Rodes & Harlin, all of Bowling Green, for appellant.

Oliver & Dixon, of Scottsville, for appellee.

THOMAS J.

The appellee and plaintiff below, Raymond Bandy, a young man about 21 or 22 years of age, filed this ordinary action in the Warren circuit court against appellant and defendant below, city of Bowling Green, a city of the third class, to recover damages against it for personal injuries sustained by plaintiff while in the employ of defendant and which he averred were produced by the negligence of the city, as his master, in failing to furnish him a safe truck with which to perform the work in which he was engaged at the time. Defendant's demurrer filed to the petition was overruled with exceptions, and in its answer it denied plaintiff's allegations and pleaded assumed risk and contributory negligence, both of which were denied by reply, and upon trial the jury returned a verdict in favor of the plaintiff for the sum of $6,000. Defendant's motion for a new trial was overruled, and from the judgment pronounced on the verdict it prosecutes this appeal.

Various supposed errors were relied on in the motion for a new trial among which were: (1) That the court erred in overruling defendant's demurrer filed by it to the petition, and (2) incompetent evidence introduced by plaintiff at the trial over its objections and to which it excepted. The other errors relied on in the motion we do not think material or meritorious, and we will therefore confine this opinion to the above-numbered ones and will dispose of them in the order designated.

1. The petition, after stating plaintiff's employment by the city and the work in which he was engaged, which was the hauling of some metal piping from a railroad car to some unnamed point in the city, and which was done with a motor truck furnished by defendant to plaintiff and his fellow servant at the time, alleged:

"That while standing upon the rear end of the platform or bed of said truck and in the discharging of his duty according to the order of the employees and agents, servants, and legal representatives, that this appliance or fixture or arrangement used for the purpose of dumping any load which might be on the said truck had become defective and worn and failed to perform its function and failed in the purpose for which it was intended and for which it had been used and for which it was placed upon this truck, and that said failure of said appliance or fixture to hold down the bed, except it was desired to dump a load, was due to the negligence and carelessness of the defendants, its agents, servants, and employees, in allowing it to become so worn and so defective, and it failed to hold said bed or platform as it was designed to do, and on account of said negligence in allowing this appliance or bolt or fastening to become so defective that it did not hold the bed or the platform, he was suddenly and without notice or warning, while in the discharge of his duties as aforesaid, violently hurled to the ground when the defective bolt or connection or equipment referred to released or gave way suddenly and unexpectedly, thereby causing him to be violently thrown to the ground and the entire load of water pipes described herein followed and fell upon him."

He then pleaded his injuries, and averred that they "were caused by and on account of the gross negligence of the defendant through its agents, servants, and employees," and by reason of which he was damaged in the sum of $15,000, for which he prayed judgment.

It will be observed that the averments of the petition follow the usual form in actions by servants against their masters who are engaged in individual private enterprises for personal gain, and thereby assumes that the defendant, municipality, is legally liable for negligent injuries produced by the carelessness of its officers, agents, and servants the same as private individuals and concerns when similarly engaged in their private business. In other words, there is no recognition in the petition that, ordinarily, and as a general rule, municipal corporations are not liable for the negligence of their officers and agents, upon the ground that they are a part of the sovereignty and are delegated to perform such duties within the confines of their corporate limits by reason of which their undertakings are primarily exercised in the discharge of a governmental function and for which the municipality is not liable for the negligence or torts of its officers and agents committed while so engaged.

It will not be necessary to substantiate that statement with appended authorities, since it is recognized and applied by all courts, including this one, and is conceded in brief of counsel for appellee. We will content ourselves therefore by referring only to some of the many cases from this court in which the doctrine has been recognized and upheld. Jackson v. City of Owingsville (Ky.) 121 S.W. 672, 25 L.R.A. (N. S.) 180; Schwalk's Adm'r v. City of Louisville, 135 Ky. 570, 122 S.W. 860, 25 L.R.A. (N. S.) 88; Kippes v. City of Louisville, 140 Ky. 423, 131 S.W. 184, 30 L.R.A. (N. S.) 1161; City of Louisville v. Carter, 142 Ky. 443, 134 S.W. 468, 32 L.R.A. (N. S.) 637; Board of Council of Danville v. Fox, 142 Ky. 476, 134 S.W. 883, 32 L.R.A. (N. S.) 636; City of Bowling Green v. Rogers, 142 Ky. 558, 134 S.W. 921, 34 L.R.A. (N. S.) 461; Smith's Adm'rs v. Commissioners, etc., 146 Ky. 562, 143 S.W. 3, 38 L.R.A. (N. S.) 151; Braunstein v. City of Louisville, 146 Ky. 777, 143 S.W. 372, 42 L.R.A. (N. S.) 538; City of Louisville v. Bridwell, 150 Ky. 589, 150 S.W. 672; Johnson's Adm'r v. Commissioners of Sewerage, 160 Ky. 356, 169 S.W. 827; City of Louisville v. Hehemann, 161 Ky. 523, 171 S.W. 165, L.R.A. 1915C, 747; Gatewood v. City of Frankfort, 170 Ky. 292, 185 S.W. 847; Von Almen's Adm'r v. City of Louisville, 180 Ky. 44, 202 S.W. 880; Browder v. City of Henderson, 182 Ky. 771, 207 S.W. 479; and Phillips v. Ky. Utilities Co., 206 Ky. 151, 266 S.W. 1064. The same authorities also hold and the principle is equally well settled, that where a municipality embarks in purely a ministerial or corporate undertaking, not coming within the discharge of its governmental functions, it is liable for negligence of its officers or agents to the same extent and upon the same grounds that a private individual would be liable under the same or similar circumstances; but that principle upholding liability in such cases is an exception to the general rule as to liability of municipalities for its torts, committed in the manner indicated, and that exception is also admitted in briefs of counsel for both parties.

So that, the exact case is that the defendant is a municipality which under our form and scheme of government is delegated with the power to perform sovereign or governmental functions within the territory of which it has jurisdiction, and in the performance of which it is exempt from liability for the character of acts and consequent injuries for which liability and recovery is asked in this case. Nevertheless, under the law, as we have seen, there may be exceptional cases where liability would exist and where recovery might be had; but neither the petition alleged nor the proof established any fact to exclude the complained of conduct on the part of the city from the general rule of nonliability in such cases, or to bring it within the exception thereto. The question is therefore one of practice, i. e., whether it is the duty of the plaintiff in such a case to show by his pleading and establish by his proof a case for which the municipality would be liable; or will it be presumed, in the absence of such allegations, that the case is one for which liability exists and requiring defendant to manifest its nonliability in its answer by averring that the duties of plaintiff when he was injured, and on which he seeks recovery, were being performed as a servant of the city when it was engaged in the performance of a governmental function? Plaintiff contends that the...

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    ... ... 1218, § 1991; Rowley v. Cedar Rapids, 203 Iowa 1245, 212 N.W. 158, 53 A.L.R. 375; City of Bowling Green v. Bandy, 208 Ky. 259, 270 S.W. 837; City of Tuscaloosa v. Fitts, 209 Ala. 635, 96 So. 771; ... ...
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