City of Little Rock v. Holland

• Citation: 42 S.W.2d 383
• Decision Date: 12 October 1931
• Docket Number: No. 147.,147.
• Parties: CITY OF LITTLE ROCK v. HOLLAND.
• Court: Supreme Court of Arkansas

42 S.W.2d 383

CITY OF LITTLE ROCK v. HOLLAND.

No. 147.

Supreme Court of Arkansas.

October 12, 1931.

Appeal from Circuit Court, Pulaski County; Richard M. Mann, Judge.

Action by Fred Holland against the City of Little Rock. Judgment for plaintiff, and defendant appeals.

Reversed, and case dismissed.

Linwood L. Brickhouse, of Little Rock, for appellant.

Geo. A. McConnell and Graham R. Hall, both of Little Rock, for appellee.

McHANEY, J.

The only question presented by this appeal is whether the city of Little Rock, in the operation and maintenance of an electric light plant and distributing system, including necessary poles and wires, for the sole purpose of lighting its streets, alleys, public buildings, and grounds, acts in a proprietary, corporate capacity, to which liability for negligence attaches; or whether it acts in its governmental capacity, on which no liability for negligence of its agents or servants may be predicated.

Appellee, an electric lineman in the employ of the city, was sent out alone by his superior to remove a pole in the city's electric line. He climbed the pole, after an inspection, to remove the wires therefrom, and, when he had reached the top, it broke because of a rotted condition beneath the surface of the ground, causing him to fall and receive painful and permanent injuries. Negligence was alleged by reason of the failure of his superior to inspect the pole or to warn him of its dangerous condition, in failing to furnish him a safe place to work, and in not sending another to assist him. A demurrer to the complaint was interposed and overruled. A trial resulted in a verdict and a judgment for appellee for $1,000. Is the city liable for the negligence of its agent or officer as alleged in this respect?

It is conceded that the city owns and operates its light plant and distributing system for the sole purpose of lighting its streets, alleys, public buildings, parks, and grounds, and that it sells no current to private consumers or otherwise.

At the outset we desire to commend the diligence of counsel for both parties in the preparation of the excellent briefs submitted to us. An exhaustive review of our own decisions touching on the question, as well as a great collection from other jurisdictions, has been made. We find it unnecessary, however, to go beyond our own cases to determine the question involved, as we feel the principle has been well settled by many decisions of this court. We will not undertake to review them all, but only enough of them to show that the principle has been decided.

As early as Granger et ux. v. Pulaski County, 26 Ark. 37, it was held that counties are quasi corporations, and that they possess no power and incur no obligations, except conferred or imposed by statute, and that they are not liable, in a private action by the party injured for the negligence of their officers, unless authorized by statute. At the conclusion of the opinion, the court pointed out a distinction between counties and municipalities, and rather indicated that, had the action been against a municipality instead of a county, the municipality would be answerable, and held to a performance of its corporate duties. Granger and wife sought damages for injuries received by reason of a defect in a public highway, a defective bridge. It was denied.

Whatever distinction between liability of counties and cities the court pointed out in the Granger Case, supra, has been lost sight of by this court in its later decisions. For instance, in Arkadelphia v. Windham, 49 Ark. 139, 4 S. W. 450, 4 Am. St. Rep. 32, it was held that a municipality is not liable for nonfeasance in failing to put the streets in repair, or in failing to...