City of Kokomo v. Loy

• Decision Date: 01 June 1916
• Docket Number: 23,101
• Parties: City of Kokomo v. Loy
• Court: Indiana Supreme Court

112 N.E. 994

185 Ind. 18

City of Kokomo v. Loy

No. 23,101

Supreme Court of Indiana

June 1, 1916

From Howard Circuit Court; William C. Purdum, Judge.

Action by Frank Loy against the city of Kokomo. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1394 Burns 1914, Acts 1901 p 565.)

Affirmed.

Herron & Byers and Bell, Kirkpatrick & Voorhis, for appellant.

Harper & Fuelber and Blacklidge, Wolf & Barnes, for appellee.

OPINION

Lairy, J.

This was an action brought by appellee, Frank Loy, against appellant, city of Kokomo, on account of personal injuries received by him while working as an employe in the Kokomo City Park, known as Highland Park, which injuries were sustained by reason of the discharge of a cannon which, under the direction of one Riley acting for the park superintendent, appellee was attempting to unload. The cause was tried by a jury and a verdict returned in favor of the appellee. His damages were assessed at $ 3,500, and judgment followed accordingly.

Appellant presents on appeal that the trial court erred in its rulings as to the sufficiency of the pleadings in permitting appellee to amend his complaint at the conclusion of the testimony received at the trial, and in overruling appellant's motion for a new trial. As conceded by appellant, the pleadings were framed and the case was tried and determined upon the theory that the city of Kokomo, in maintaining and conducting the park, was exercising its private and corporate function. Appellant earnestly insisted below and here contends that this theory is wrong and, as the issue of law involved was raised by demurrer, objections to the introduction of testimony, and exceptions to the instructions, the determination of this question will dispose of practically all of the objections presented.

As disclosed by the record, the facts upon which the action is based are briefly and in substance as follows: Appellant was a municipal corporation, organized under the laws of Indiana and owned and maintained for the benefit of the public a park known as the Kokomo City Park. The common council of the city had appointed a board of park trustees, under § 8747a Burns 1914, Acts 1909 p. 155, to take charge of the park and its employes in caring for the same, and at the time of the injury complained of, appellee was under the employ of the board and under the direction of the park superintendent. On July 3, 1911, the regularly appointed superintendent ordered and directed appellee, during the following days thereafter and until his return, to obey the directions of one Allen Riley. The following day it was discovered that an old cannon which stood in the park had been loaded by miscreants, and Riley, acting as superintendent, ordered and directed appellee to withdraw the charge therefrom, so as to remove the danger to persons congregating in the park. It is alleged in the complaint that appellee remonstrated, but was peremptorily ordered to unload the cannon and was informed by Riley that there was no danger in doing so; that he furnished appellee with a stiff wire and directed him to insert it in the cannon; that the withdrawal of the charge was fraught with great danger and that the wire was an unfit implement for such purpose, of which facts appellee was ignorant but which were well known to Riley; that appellee was compelled to stand immediately before the muzzle of the cannon and, relying upon the assurances of Riley, he inserted the wire as directed; that the cannon was thereby discharged and that as a result thereof appellee was permanently injured and crippled.

Municipal corporations exist in a dual capacity and their functions are twofold. In one they exercise the right springing from sovereignty and, while in the performance of the duties pertaining thereto, their acts are political and governmental. Their officers and agents in such capacity, though elected or appointed by them, are nevertheless public functionaries performing a public service, and as such they are officers, agents and servants of the state. In the other capacity the municipalities exercise a private, proprietary or corporate right, arising from their existence as legal persons and not as public agents. Their officers and agents in the performance of such functions act in behalf of the municipalities in their corporate or individual capacity and not for the state or sovereign power. Wagner v. Portland (1902), 40 Ore. 389, 60 P. 985, 67 P. 300; Galveston v. Posnainsky (1884), 62 Tex. 118, 50 Am. Rep. 517. In order that the state may perform its functions, it is necessary for it to be represented by agencies of government and, where these agencies merely perform such governmental functions, holding them responsible for negligence would be manifestly the same as holding the sovereign power answerable. On the other hand, a state agency, as a corporation, acquires an individuality distinct from the sovereign power, and the principle stated does not prevent the corporate body from being held liable for its own negligence, no more than it would exempt a public state officer from liability for his negligence in the management of his personal or private affairs.

The question of whether a municipal corporation may be made to respond in damages for a tort, either of misfeasance or nonfeasance, in connection with a particular department of activity, depends, according to the weight of authority, upon whether the duties of that department pertain to the public and governmental functions, or to the private and corporate administration of the municipality. In some jurisdictions, however, exceptions to this general principle seem to have been recognized. It has been held that a municipality is liable for the maintenance of a public nuisance, even though in maintaining such nuisance it is in the discharge of a governmental function. Hughes v. City, etc. (1889), 73 Wis. 380, 41 N.W. 407; Anable v. Board (1904), 34 Ind.App. 72, 71 N.E. 272, 107 Am. St. 173. Another exception is attempted, in cases such as the one before this court, where the cause of action arises from a breach of duty owing to an employe or servant of the municipality, it being contended that the municipality would be liable under such circumstances on account of the breach of a duty arising out of the relation of master and servant, even though the municipality was at the time engaged in the performance of a governmental duty. Colwell v. Waterbury (1902), 74 Conn. 568, 51 A. 530, 57 L. R. A. 218; O'Brien v. Derry (1905), 73 N.H. 198, 60 A. 843. Still another exception seems to have been recognized, where the liability of the municipality was based upon instances where the duty negligently performed was in the management of property, it being in some of the cases pointed out that in the execution of the work and management of such property that the duties are merely ministerial; hence the liability for their neglect. Bowden v. Kansas City (1904), 69 Kan. 587, 77 P. 573, 66 L. R. A. 181, 105 Am. St. 187, 1 Ann. Cas. 955; City of Lafayette v. Allen (1881), 81 Ind. 166; City of Greencastle v. Martin (1881), 74 Ind. 449, 39 Am. Rep. 93.

Inasmuch as the reason for the established doctrine of nonliability of municipalities acting in the discharge of governmental affairs is that, in the exercise of such powers they are merely branches of the state or sovereign power, and therefore a part of the state in that regard and thus not liable as a matter of established public policy, the attempted and recognized exceptions referred to do not seem to be well founded. The liability or nonliability of a municipality for its torts does not depend upon the nature of the tort, or the relation existing between the city and the person injured, or whether the city was engaged in the management of tangible property, but depends upon the capacity in which the city was acting at the time.

While the distinction between public and private functions as affecting liability for negligence of its agents is generally recognized, a great deal of confusion arises when an attempt is made to determine in what capacity the municipality was acting in committing the particular tort complained of. Many different rules have been formulated on the subject by jurists and text-writers, who apply tests of whether the department in which the injury occurred was of a nature legislative or administrative, discretionary or ministerial performed by persons whose offices were created by the legislature or the municipality, whether the department and its duties were made mandatory by the statutes of the state or were merely...