City of Miami v. Bethel

• Decision Date: 28 April 1953
• Citation: 65 So.2d 34
• Parties: CITY OF MIAMI v. BETHEL et al.
• Court: Florida Supreme Court

Page 34

65 So.2d 34

CITY OF MIAMI v. BETHEL et al.

Supreme Court of Florida, en Banc.

April 28, 1953.

Rehearing Denied May 25, 1953.

S. O. Carson, J. W. Watson, Jr., John H. Wahl, Jr., and Walton Hubbard, Schroeder, Lantaff & Atkins, Miami, for appellant.

Morehead, Forrest, Brown & Gotthardt and Lawrence G. Ropes, Jr., Miami, for appellees.

SEBRING, Justice.

The City of Miami has appealed from an adverse judgment rendered in an action at law instituted by the appellee, Kelsey Bethel, to recover damages for injuries resulting to him from an alleged beating by two police officers of the municipality.

From certain evidence in the record which the jury had a right to believe, it appears that shortly prior to the alleged beating, the plaintiff, Bethel, was shooting craps with a group of friends in the back yard of a certain property on which was located a building containing a poolroom. After losing all his money, Bethel quit the crap game and walked into the poolroom. Shortly thereafter two policemen of the City of Miami appeared on the scene and the crap shooters scattered. Some of the participants ran into the poolroom pursued by the policemen. As one of the police officers came into the building he saw the plaintiff and accused him of having been a participant in the crap game. When Bethel denied having been in the game, the officer laid hands on him, took him outside the building, and held him while the other officer gave him a severe beating.

The question on the appeal is whether the city is liable for the beating administered to the plaintiff by the police officers of the city.

Whatever the law may be elsewhere, it has long been established in this jurisdiction that a municipal corporation is not liable for the tortious acts of its police officers committed as incident to the exercise of a purely governmental function. As the principle is stated in Kennedy v. City of Daytona Beach, 132 Fla. 675, 182 So. 228, 229:

'When, by the action of the state, a municipal corporation is charged with the preservation of the peace, and empowered to appoint police boards and other agencies to that end, the corporation pro tanto is charged with governmental functions in the public interest and for public purposes and in the exercise of its powers and duties in respect of the enactment and enforcement of police regulations it is entitled to the same immunity as the sovereign granting the power unless such liability is expressly declared by the sovereign. The police regulations of a city are not made and enforced in the interest of the city in its corporate capacity, but in the interest of the public. A city is not liable therefore for the acts of its officers in attempting to enforce such regulations * * *. Furthermore, police officers can in no sense be regarded as servants or agents of the city. Their duties are of a public nature. Their appointment is devolved upon cities and towns by the legislature as a convenient mode of exercising a function of government; but this does not render the cities and towns liable for their assaults, trespasses or negligent acts, while acting in the performance of such public duties, unless liability is imposed by statute, or unless the municipal charter or some special statute makes members of the police force agents of the municipality. [43 C.J. 964].'

The doctrine of municipal immunity for tortious acts committed by employees engaged in governmental functions is derived from the common law which was adopted by the Lagislature. McCain v. Andrews, 139 Fla. 391, 190 So. 616; Swanson v. City of Fort Lauderdale, 155 Fla. 720, 21 So.2d 217; Bradley v. City of Jacksonville, 156 Fla. 493, 23 So.2d 626. Also see 38 Am.Jur. 265, 272, 317. Hence, if the doctrine is to be altered, the responsibility for such change must rest with the legislative, not with the judicial, branch of the government.

While it may be that the police officers in the instant case can be made to respond civilly or criminally for the acts committed by them--a question not before us--it is clear from the decisions that in those instances where a municipality has been held liable for the unlawful commission by its agents of an act otherwise lawful, recovery has been confined to those cases where the act attempted and the unlawful manner of its execution have been clearly outside the area of governmental functions.

From the conclusions reached it follows that the judgment appealed from should be reversed.

It is so ordered.

THOMAS, MATHEWS and DREW, JJ., concur.

HOBSON, J., concurs specially in judgment of reversal.

ROBERTS, C. J., and TERRELL, J., dissent.

HOBSON, Justice (concurring specially in judgment of reversal).

I am impelled to state that although I did not find in my research a single case from this or any other jurisdiction in which the Court has departed from the general rule that a municipality while acting in a governmental, as distinguished from a proprietary, capacity is not liable in tort for negligence of its officers, agents or employees, yet the reasons uniformly given for such rule are not, in my judgment, in this era of modernity, logical or sound.

It has been suggested that the propriety of receding from the doctrine of nonliability of a city in performance of governmental functions should be determined by the legislature rather than by the courts. This contention is bottomed upon the fact that Florida adopted the common and statute law of England which was in force on July 4, 1776. An examination of the common law discloses that this doctrine originated with the courts. It was not on July 4, 1776, and, as far as the writer has been able to ascertain, has never become, a part of the statute law of England. Moreover, the first case which it is largely assumed dealt with the subject is Russell v. The Men of Devon, 2 T.R. 667. It was not decided until the year 1788 and was not a case dealing with liability of a municipality for torts committed by its officers, agents or servants but was an attempt to maintain an action and secure a judgment against the inhabitants of a county. Actually the question involved was the propriety of the court sustaining an action against the residents of said district bottomed upon the failure of such individuals to maintain a public bridge in a reasonably safe condition. Under the common law a county was considered part and parcel of the sovereign and sovereign immunity to such an action would have been invoked; hence, the attempt to maintain a suit against the inhabitants of a county.

Thus it may be seen that at the time this State adopted the common and statute law of England no authority existed, nor did such authority actually exist by virtue of the decision in Fussell v. The Men of Devon, (1788), supra, for the ruling that a municipality should not be held liable in a tort action if the cause of action arose by virtue of performance of a governmental function. It is true that this Court has subscribed to the doctrine of nonliability of municipalities in performance of governmental functions but was have as much right to recede from such ruling, if we deem it appropriate to do so, as we have to depart from any other pronouncement of law which we have made. I am as firm an advocate of the doctrine of stare decisis as any judicial officer should be. However, when the reasons for prior decisions are unsound, obsolete and tend to defeat rather than administer justice, I would not hesitate to depart from established court-made law.

Many reasons have been advanced in support of the doctrine of municipal nonliability in cases wherein the officers, agents or servants of the city were performing governmental functions. Among the reasons which apparently gave birth to this doctrine are:

(1) fear that the property of the city might be sold to satisfy the judgment with the result that the objects for which the city was created would be thwarted;

(2) the possibility that property belonging to individual residents of the city might be subjected to execution consequent upon a judgment;

(3) the sovereign is immune from suit unless such immunity is waived;

(4) and some states, including Florida, have held that the officer of employee of the city, if his act be one consequent upon performance of a governmental function, is not actually the servant of the city but of its citizens as a whole and the rule of respondeat superior cannot be applied.

The first of the foregoing reasons is obviously unsound because the question of how or if a judgment may be satisfied has no place in the determination of the question whether an action will lie. The enforcement of a judgment if obtained might be permitted only against property owned by the city which is not essential to the operation of the city in connection with the objects for which it was established.

The thought that property of the individual residents of the city might be subjected to levy and sale is not tenable because liability of property owners residing in a city for the debts of the municipality has never been the generally accepted rule in this country--certainly not in this jurisdiction.

The answer to the suggestion of sovereign immunity from suit lies in the recognized fact that in this State although a municipality receives it charter from the State, it is not, like a county, a subdivision or integral part of the State government but is in fact an independent governmental unit and functions as such, subject, of course, to the limitations of its charter.

The theory that a city employee when performing duties which are governmental in character is acting for the public generally and not for the city although it employed him and assigns him to and directs his work, if carried to its logical conclusion, would likewise exempt the employee from personal liability. If he be decreed to be the servant of...