City of Meridian v. Beeman

• Decision Date: 30 March 1936
• Docket Number: 31979
• Citation: 166 So. 757,175 Miss. 527
• Court: Mississippi Supreme Court
• Parties: CITY OF MERIDIAN et al. v. BEEMAN

166 So. 757

175 Miss. 527

CITY OF MERIDIAN et al. v. BEEMAN

No. 31979

Supreme Court of Mississippi

March 30, 1936

Suggestion Of Error Overruled, May 4, 1936.

(In Banc.) March 30, 1936. Suggestion of Error Overruled,)

1 AUTOMOBILES.

Liability of city policeman, patrolling his beat in automobile, for injuries to bicyclist, whom he overtook and ran over when he lost control of automobile as result of looking back to see what happened to dog struck thereby, held for jury.

2. MUNICIPAL CORPORATIONS.

Municipality is not liable for negligence of its officers, agents, or employees while performing governmental functions or duties such as police duties.

3 AUTOMOBILES.

City policeman, required by ordinance to note and report condition of bridges, culverts, sewers, streets, sidewalks, etc., while patrolling his beat, being charged with corporate, as well as governmental, duties, city was liable for injuries to bicyclist as result of such policeman's negligent operation of automobile while patrolling beat.

GRIFFITH J., and SMITH, C. J., dissenting.

HON. ARTHUR G. BUSBY, Judge.

APPEAL from the circuit court of Lauderdale county HON. ARTHUR G. BUSBY, Judge.

Action by L. W. Beeman against the City of Meridian and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Affirmed.

Howard Westbrook, of Meridian, for appellants.

The defendant Robbins at the time of the accident was a "public officer," serving the municipality in its governmental rather than corporate capacity.

Sections 2406 and 2436, Code of 1930; Monet v. Jones, 18 Miss. (10 S. & M.) 237; Macon v. Patty, 57 Miss. 378, 34 Am. Rep. 451; Shelby v. Aleorn, 36 Miss. 273, 72 Am. Dec. 169; City of Hattiesburg v. Beverly, 86 So. 590; Ex parte Bourgeois, 60 Miss. 663, 45 Am. Rep. 420; Gilmore v. Salt Lake City, 13 Ann. Cas. 1016; Dube v. Montreal, Ann. Cas. 1913A, 468; Itaney v. Gofran, Ann. Cas. 1917B, 664; State v. Edwards, 38 Mont. 250, 99 P. 940; Roumbos v. Chicago, 163 N.E. 361; Burch v. Hardwicks, 30 Grat. 24, 32 Am. Rep. 640; Blynn v. Pontiac, 185 Mich. 35, 151 N.W. 681; Farrell v. Bridgeport, 45 Conn. 191; Brown v. Russell, 43 N.E. 1005, 55 Am. St. Rep. 357, 32 L. R. A. 253.

In a number of cases constitutional and statutory provisions with respect to public officers have been construed as applicable to policemen, thus impliedly treating them as public officers.

Monette v. State, 81 Miss. 662, 44 So. 989; Johnson v. State, 132 Ala. 43, 31 So. 493; Pennie v. Reis, 80 Cal. 266, 22 P. 176; Sullivan v. Bridgeport, 81 Conn. 660, 71 A. 906; Healy v. Hillsboro County, 70 N.H. 588, 49 A. 89; Mangam v. Brooklyn, 98 N.Y. 585, 50 Am. Rep. 705; Cleveland v. Payne, 72 Ohio St. 347, 74 N.W. 177, 70 L. R. A. 841.

In actions brought under the rule that where a public officer has a legal right to his office, this right carries with it, as incident thereto, the salary of the office, the courts have impliedly recognized police officers as public officers.

Larson v. St. Paul, 83 Minn. 473, 86 N.W. 459; State v. Wallridge, 153 Mo. 194, 54 S.W. 477; Section 2434, Code of 1930.

The City of Meridian is not liable for any damages in this case, because it was injury occasioned by one of its officers and agents, attempting to carry out and enforce its ordinances and regulations adopted by it in the exercise of its police powers in a governmental capacity.

Bradley v. City of Jackson, 153 Miss. 136, 119 So. 811; City of Gulfport v. Sheppard, 116 Miss. 439; 77 So. 193; Alexander v. Vicksburg, 68 Miss. 564, 10 So. 62; Section 3329, Code of 1906, as amended by chapter 274, Laws of 1926, Hemingway's Code of 1927; Warren v. Town of Booneville, 151 Miss. 457, 118 So. 290; 19 R. C. L. 1119, sec. 399; 28 Cyc. 1299; Dillion Municipal Corporations (5 Ed.), 1656; McQuillin Municipal Corporations (2 Ed.), sections 2591 and 2431, page 405; McCarter v. Florence, 112 So. 335; Campbell's Admx., v. Montgomery, 53 Ala. 527, 25 Am. Rep. 656; Ready v. Tuscaloosa, 6 Ala. 227; Grumbine v. Washington, 2 MacArthur, 578, 29 Am. Rep. 262; McElroy v. Albany, 65 Ga. 387, 38 Am. Rep. 791; Harris v. atlanta, 62 Ga. 290; cook v. Macon, 54 Ga. 468; clark v. Atlanta, 62 Ga. 290; Cook v. Macon, 54 Ga. 468; 231 Ill. 223 83 N.E. 223, 13 L. R. A. (N. S.) 1190; Peters v. Linsborg, 40 Kan. 654, 20 P. 490; Altvater v. Baltimore, 31 Md. 462; Hathway v. Everett, 205 Mass. 246, 91 N.E. 296; Worley v. Columbia, 88 Mo. 106; Woodnull v. New York, 150 N.Y. 450, 44 N.E. 1038; McIllhenney v. Wilmington, 127 N.C. 146, 37 S.E. 187, 50 L. R. A. 470; Miller v. Hastings, 25 Pa. S.Ct. 596; Shultz v. Milwaukee, 49 Wis. 245, 5 N.W. 342, 35 Am. Rep. 779; Clark v. Atlantic, 180 F. 598; Stater v. Joplin, 189 Mo.App. 383, 176 S.W. 241; Evans v. Berry, 186 N.E. 205; Aldrich v. Youngstown, 140 N.E. 164, 27 A. L. R. 1498; Christ Hansen v. Berry & City of Fargo, 209 N.W. 1002; Devers v. Scranton, 308 Pa. 13., 161 A. 540, Tompkins v. Williams, 54 S.W.2d 70, 42 S.W.2d 106., McQuillin Municipal Corporations (2d), sees. 2793, 2801, 2796; Joliff v. City of Shreveport, 80 So. 200; Wilcox v. Rochester, 190 N.Y. 132, 82 N.E. 1119, 17 L. R. A. (N. S.) 741; Maxmillian v. New York, 62 N.Y. 160, 20 Am. Rel). 468; Leckliter v. City of Des Moines, 233 N.W. 58; Jones v. Sioux City, 185 Iowa 1178, 170 N.W. 445, 10 A. L. R 474 Bradley V. City of Oskaloosa, 193 Iowa 1072, 188 N.W. 896.

The verdict in this case is deserving of consideration for several reasons. Pie form of the verdict is so in. definite and ambiguous as to render it objectionable and to justify setting, aside the judgment based thereon.

Louisville & N. R. Co v. King, 119 Miss. 79, 80 So. 490., Morris v. Robinson Bros. Moior Co., 144 Miss. 861, 110 So. 683; 27 R. C. L., page 858, sec. 30, page 859, sec. 31-, Parham v. Harney, 6 S. & M. 55; Buckeye Cotton Oil Co. v. Owen, 122 Miss. 14, 84 So. 133.

There was no question for the jury to decide.

Restatement of the Law of Torts, sec 289

If we search the record for proof of negligence on the part of Robbins that was calculated to produce injury, and, that as a proximate result of such negligence the plaintiff was injured, we fail to find positive proof. On the other hand there is preponderating proof that there was an intervening act or force which Robbins did not foresee, and which he could not have foreseen, which was the sole cause of the injury, and that Robbins was not guilty of actionable negligence which contributed.

Restatement of the Law of Torts, sees. 440. 441. 442. The verdict was excessive under the facts.

Robert M. Holmes, E. T. Strange and Graham & Graham, all of Meridian, for appellee.

It will be remembered that appellant, the city of Meridian, declined to come under the Mississippi code section governing municipalities, but preferred to operate its affairs as a municipality under its own private charter granted to it by the state of Mississippi, under which it is permitted to exercise many powers and privileges which would have been denied it under the Mississippi code section. In the adoption of Dial's Code by Ordinance, appearing as Exhibit "E" to the declaration, it did so voluntarily, and is absolutely bound by the effect of such laws and renders it liable for the acts of its employees or agents, when in the discharge of Iris duties under these laws. regardless of the name of the office he operates under, as they are each and all private and corporate duties and not governmental duties. After the city, for its own pecuniary benefit, has made out of its policemen inspectors of all its private business, including streets, lights, bridges, water pipes, sewers, drains, wires, etc., and providing that each policeman shall, at all times, discharge such corporate duties; report street lights not burning so that the city can get credit for them, being purely local and private in their nature and not governmental or public, the doctrine of respondiat superior applies with full force, and the appellant cannot and will not be heard to say that it is not liable just because the co-appellant was also a policeman.

That the duties fixed by the laws of the city involved private or corporate functions of a municipality, is well settled by this court.

Brynes v. City of Jackson, 105 So. 861; Pass Christian v. Fernedez, 100 Miss. 76, 56 So. 329, 39 L. R. A. (N. S.) 649; Warren v. Town of Booneville, 118 So. 290; Methodist Church, South, v. Vicksburg, 50 Miss. 601; Bradley v. City of Jackson, 119 So. 811, 819; Crawford v. Delo, 119 Miss 28; Brown v. Vicksburg, 108 Miss 510; Scruple v. Vicksburg, 62 Miss. 63; City of Vicksburg v. Porterfield, 145 So. 355; City of Hattiesburg v. Geigor, 79 So. 846.

The city is responsible for scrambling the duties of its policemen with both public and private duties, and when the city voluntarily places mixed duties upon its policemen, his private duties instead of his public duties will predominate in the matter of fixing liability on the city, as the courts are not concerned with unscrambling the duties voluntarily placed upon police officers, by the city, as was held in the very able and well reasoned opinion by the Pennsylvania Supreme Court, in 1929, in the case of Bell v. Pittsburg, 297 Pa. 185, 64 A. L. R. 1542, and Antine v. County, 280 Pa. 664, 66 A. L. R. 1271.

Whenever the work is not entirely public, but is part for profit, or when any element of pecuniary advantage enters into it, there is a liability for the negligent acts of servants.

188 Mass. 301, 108 Am. St. Rep. 473; City of Birmingham v McKinnon, 75 So. 487; 43 C. J. 944 and 964, sec. 1745; Jones v. Sioux City, 25 A. L. R. 474; Lobitz v. Cummings, 42 Okla. 704, L. R. A. 1915B, 415; Levine v. Omaha, 102 Neb. 328; Denver v. Porter, 126 F. 288, 61 C. C. A. 168; Chandler v. City of Bay St. Louis, 57 Miss. 326; ...