City of Louisville v. Louisville Seed Co.

• Decision Date: 08 March 1968
• Citation: 433 S.W.2d 638
• Parties: CITY OF LOUISVILLE, a municipal corporation, Appellant, v. LOUISVILLE SEED COMPANY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 638

433 S.W.2d 638

CITY OF LOUISVILLE, a municipal corporation, Appellant, v. LOUISVILLE SEED COMPANY, Appellee.

Court of Appeals of Kentucky.

March 8, 1968.

Rehearing Denied Dec. 6, 1968.

Bernard S. Goldstein, Chester A. Vittitow, Jr., Asst. Directors of Law, Louisville, Eugene H. Alvey, Director of Law, Louisville, for appellant.

Joseph E. Stopher, A. J. Deindoerfer, William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Henry J. Stites, Stites & Stites, Louisville, for appellee.

OSBORNE, Judge.

This is a suit by the appellee, Louisville Seed Company, against the City of Louisville for damages. It grows out of the city's negligence in its failure to install gates in the municipal flood wall system during the flood of March, 1964. The action was tried before a jury and judgment entered upon its verdict in the amount of $81,771.43. The appeal before us is upon this judgment.

The city claims many errors in the trial. It first contends that appellee was contributorily negligent. This contention is based upon the theory that appellee should not have relied upon the assurances given by the mayor and other city officials including the flood control department that the gates would be installed in time to protect the citizens from flood damages. It is their contention that appellee knew or should have known the gates were not in place. The long-established rule of this jurisdiction is that contributory negligence is ordinarily a question for the jury especially where reasonable minds might differ. We believe such was the case here. See Winn-Dixie Louisville, Inc. v. Smith, Ky., 372 S.W.2d 789.

Appellant contends that adverse publicity during the course of the trial was prejudicial to its right to a fair trial and for that reason the judgment should be reversed. In support of this contention they direct the court's attention to various headlines appearing in a local newspaper and cite Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600. The trial judge admonished the jury not to read the newspapers during the course of the trial and there being nothing in the record to indicate that the jurors did not heed this admonition, we have no alternative but to conclude that they complied with the directions of the court. In any event, we hardly think the Sheppard case analogous as it deals with a criminal prosecution which must of necessity be and has historically been protected by more stringent rules against prejudicial publicity than have civil cases. It is difficult to imagine how a case of such local importance as this one was could be heard without attending publicity. In the absence of a showing that the publicity had an effect upon the outcome of the trial it cannot be declared that the excessive publicity rendered the trial invalid.

There is a contention that the verdict was excessive on two grounds. First, that it is for the exact amount asked for in the complaint and, secondly, that the jury awarded damages for lost profits. As to these two contentions, we believe the first faulty in that there was evidence to support the amount of the verdict and for this reason it is not material that it is for the full amount asked. As to the second contention, appellant did not object when evidence supporting the loss of profits was introduced nor did it object to the court's instructions allowing loss of profits. Where errors are not properly preserved they cannot be raised for the first time before this court.

Appellant's next contention is the main thrust of its defense. It contends that this court was in error in striking down the doctrine of sovereign immunity as applied to municipalities. Haney v. City of Lexington, Ky., 386 S.W.2d 738, and City of Louisville v. Chapman, Ky., 413 S.W.2d 74. It is its contention that these cases were ill considered and the ramifications of the abolition of the doctrine of sovereign immunity can be devastating upon the affairs of the city. For this reason it argues these cases should be overruled and the doctrine reinstated.

It is difficult to perceive how the cause of justice can be advanced by turning back the pages of history. The history of the doctrine of sovereign immunity, as it relates to municipalities, from its inception in 1788 in the English case of Russell v. Men of Devon, 2 Term Rep. 667, 100 Eng.Rep. 359, to its demise in this jurisdiction in 1964 in the Haney case, supra, was never satisfactory. Many jurisdictions as did ours made exceptions to the rule for activities classified as proprietary. The distinction between proprietary and governmental was never very clear and led to much confusion. ¹ Other jurisdictions made an exception in those cases where the tort could be classified as a nuisance. Phillips v. City of Pasadena, 27 Cal. 104, 162 P.2d 625. Because of conflicting opinions engendered by the doctrine and because of what was felt to be social injustice occasioned by its application it has been berated by innumerable courts and legal writers alike. In 1957, the Supreme Court of Florida in Hargrove v. Town of Cocoa Beach, Fla., 96 So.2d 130, 60 A.L.R.2d 1193, struck the doctrine down. This was immediately followed by several other jurisdictions including our own until now, eleven years later, many jurisdictions by virtue of legislation or judicial decree no longer follow the doctrine. This move is viewed by those who sponsored its demise as progressive enlightenment and by others as a serious mistake. It will have to be left to the future to judge who is correct.

Now that the protection of immunity is breached the time is upon us to determine in what instances and to what extent actions should be permitted against our municipalities. It is immeidately recognized that there must be some limitations. Public agencies engage in activities of a scope and variety far beyond that of any private business. These activities affect a much larger segment of the public than do the activities of private business. Private business carries on no activities even remotely comparable to a city street system which may cover many thousands of miles and is used by the entire public. With rare exceptions, private business carries on no function as hazardous or exacting in detail as the work of a city fire or police department. These activities are so inherently dangerous that private business would hesitate to undertake them. In addition, our cities and other sovereign governments must care for mental patients, keep jails, juvenile and other detention services, control the spread of communicable disease, maintain sewer and flood facilities, and more recently, provide for control of riots. ² All of these are so important to the health, safety and welfare of the public that they cannot properly be abandoned. And, it can be readily appreciated that the imposition of broad standards of tort liability upon them might be extremely burdensome and could possibly force their curtailment or even abandonment to the detriment of the general public. For this reason, some reasonable compromise must be reached--one that will permit the isolated citizen to recover for grievous injustices imposed upon him by a negligent society, yet protect that society from what could cumulate into ruinous claims. One of the leading cases in which a court faced this problem is Steitz v. City of Beacon, 295 N.Y. 51, 64 N.E.2d 704. Here a city was sued by one whose property had been destroyed by fire as a result of the negligence of the city in failing to maintain its fire fighting equipment. Sovereign immunity had been previously waived by legislative action. The court, in construing an act which required the city to maintain the equipment, held it court not be so construed as to impose a 'crushing burden' upon the city. The opinion states:

'Quite obviously these provisions were not in terms designed to protect the personal interest of any individual and clearly were designed to secure the benefits of well ordered municipal government enjoyed by all as members of the community. ³ There was indeed a public duty to maintain a fire department, but that was all, and...