City of Lexington v. Yank

• Decision Date: 21 June 1968
• Citation: 431 S.W.2d 892
• Parties: CITY OF LEXINGTON, Appellant, v. Albert YANK, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 892

431 S.W.2d 892

CITY OF LEXINGTON, Appellant, v. Albert YANK, Appellee.

Court of Appeals of Kentucky.

June 21, 1968.

Rehearing Denied Oct. 18, 1968.

William C. Jacobs, Lexington, for appellant.

Strother Kiser, Lexington, for appellee.

DAVIS, Commissioner.

Albert Yank obtained a jury verdict and a judgment against the City of Lexington for $35,000 based on his claim for personal injuries received and medical expenses incurred when Yank was assaulted by a police officer of Lexington. On this appeal the bases presented for reversal are (1) that a directed verdict should have been given for the appellant; (2) the verdict is excessive and not supported by competent evidence; and (3) errors in instructions.

The evidence for appellee tended to show that Robert Wagoner, then a police officer of the City of Lexington, stopped on a Lexington street an automobile in which appellee was a passenger and which was driven by a Miss Lilly. The officer charged that Miss Lilly had failed to observe a traffic light; appellee testified that he inquired of the officer where the traffic light was located and suggested that the officer should give Miss Lilly a citation and permit them to proceed on their journey. Officer Wagoner was incensed by the comments of appellee and struck him on the arm and about the face and head. One of the blows, said to have been administered with a blackjack, injured Yank's right eye. Yank was handcuffed and literally 'thrown' into the 'paddy wagon' and hauled to police headquarters. According to appellee's evidence, Yank received further beating at the hands of Wagoner and other officers as he was removed from the wagon and again as he was being transported on the elevator to the booking desk. It is appropriate to observe that Wagoner was dismissed from the Lexington police force and had absented himself by trial time so that he did not appear as a witness. Lexington's Assistant Chief of Police, William B. Davis, candidly testified that excessive force had been used in the arrest of appellee. The charges filed against appellee by Officer Wagoner were dismissed by the Lexington police court.

Appellant urges us to reconsider the position taken in Haney v. City of Lexington, Ky., 386 S.W.2d 738, 10 A.L.R.3d 1362, wherein we abrogated the former rule of sovereign immunity for a municipal corporation. In support of the argument, appellant maintains that decisions subsequent to Haney, such as Cullinan v. Jefferson County, Ky., 418 S.W.2d 407; Moores v. Fayette County, Ky., 418 S.W.2d 412; and Wood v. Board of Education of Danville, Ky., 412 S.W.2d 877, in which the governmental units there involved were held still immune from tort liability, are so inconsistent with the rationale of Haney as to impel complete retreat from the rule proclaimed by Haney. The court is not persuaded to overrule Haney.

In City of Louisville v. Louisville Seed Co., Ky., (decided March 8, 1968), the court carefully reconsidered the Haney decision and spelled out certain limitations upon its applicability. A pertinent portion of the opinion in City of Louisville v. Louisville Seed Co., supra, aptly summarizes the basis for that decision:

'Where the act affects all members of the general public alike, it would be unreasonable to apply to it the broad principles of tort liability for the reasons previously stated in this opinion. But, when the city, by its dealings or activities, seeks out or separates the individual from the general public and deals with him on an individual basis, as any other person might do, it then should be subjected to the same rules of tort liability as are generally applied between individuals. This, likewise, is true when the negligent act of the city per chance falls upon the isolated citizen as distinguished from the general public. When that act does not involve the ultimate function of government, the city should be required to respond in damages. This is true without regard to whether the function would have been classified as proprietary or governmental under our old classifications.'

In the case before us the basis for immunity, as delineated in the just quoted portion of the Louisville Seed Company decision, is not present. Within the purview of the latter opinion, the city, through its officer, substantially separated Yank from the general public and dealt with him on an individual basis just as a private person might have done. In such a circumstance the tort liability of the city is gauged by the rules generally applicable between individuals.

Appellant insists that even if we apply the Haney rule of nonimmunity we must absolve the city, because no true agency relationship exists between a city and a police officer of the city. Appellant points out that the statutes of the Commonwealth mandatorily prescribe the qualifications and tenure for municipal police officers for cities of Lexington's class. Moreover, the statutes fix the procedures for and limits of disciplinary measures as well as the permissible working hours. The Constitution of Kentucky, Section 228, as implemented by KRS 95.490, dictates the oath and bond for the officer; and his duties and powers are defined in Section 10 of the Kentucky Constitution, as well as in statutory enactments, the Rules of Criminal Procedure, and various case law announced by this court. Reliance is had upon Taylor v. City of Owensboro, 98 Ky. 271, 32 S.W. 948, in which it was held that the city was not liable for the act of a police officer in making an arrest for breach of the peace under a void ordinance of the city. In the course of that opinion, it was said that a municipal corporation is not responsible for acts of police officers unless it is shown that the officer was truly the local officer of the city respecting some exercise of municipal power for the peculiar benefit of the city in its local or special interests, as distinguished from a power and duty imposed by the state for the general benefit of the public at large.

We need not quibble as to whether the enunciations made in Taylor v. City of Owensboro, supra, were necessary to the decision or obiter dicta. Since sovereign immunity for municipal corporations existed when the decision was reached in the Taylor case, the decision could have been reached on that ground alone. We think it...