City of Pass Christian v. Fernandez

Decision Date23 October 1911
Citation56 So. 329,100 Miss. 76
CourtMississippi Supreme Court
PartiesCITY OF PASS CHRISTIAN v. ERNEST FERNANDEZ, BY NEXT FRIEND, JOHN FERNANDEZ

March 1911

APPEAL from the circuit court of Harrison county, HON. T. H BARRETT, Judge.

Suit by Ernest Fernandez against the city of Pass Christian. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Hardy &amp Hardy, for appellant.

Municipality not liable for tort of its officers or agents acting in a public duty, as distinguished from corporate duty.

In the case of W. C. Alexander v. City of Vicksburg, 68 Miss. 564, the principles involved in the case now before the court are clearly, firmly and directly fixed.

In that case it is held that a municipal corporation is not liable for injuries resulting from the negligent driving of a hose reel on its way to a fire in the city limits, although the fire department is under the direct managment of the city and the driver is in its employ. The simple question of whether or not the city was liable was submitted to the court, the jury being waived, and the city admitting that the driver of the hose cart had been negligent, and that he was in the employ of the city at the time.

Mr Justice Campbell, in delivering the short opinion of the court, affirmed the judgment of the lower court and stated that, "It is held generally, if not universally, by the courts of this country that in cases of the class to which this belongs, the municipality is not liable."

In Davidson v. New York, 24 Miss. 560, 54 N.Y.S. 51, it was held that the municipality was not liable for injuries caused by the driver of a cart in the street cleaning department of the city where he had, through negligence, injured a child of tender years.

An abundance of authority could be cited to the court sustaining this view. All of the cases distinguish between the two municipal functions; one public and the other corporate. A public function is that which is exercised by virtue of certain attributes of sovereignty delegated to a city for the welfare and protection of its inhabitants or the general public. A corporate function is the one which relates only to local or private purposes, for the administration of which, it acts, not through its public officers as such, but through agents or servants employed by it. No liability attaches to the city in the performance of political, governmental, or public functions, either by nonuser or mis-user by its officers or agents, or the servants employed by such agencies; while in the performance of a corporate function, the municipality stands upon the same footing as a private corporation, and will be held for injuries resulting from its negligence, or from the torts of its officers, agents, or employees.

In the case before the court the cartman was employed and was on the day and at the time the injury occurred, exercising a public function. He was driving a cart owned and operated by the city under the supervision of the street commissioner or marshal. That the cleaning, watering and grading of streets is one of the public functions of a municipality is so elementary that it is unnecessary to cite authorities in support of such a position.

McDonald & Marshall, for appellee.

It is familiar learning that a city, or municipal corporation, has unlike a county or quasi municipal corporation, two phases or objects of incorporated existence. The one is public or governmental, an arm of the state government and a branch of its sovereignty, whose object and duty it is to preserve the peace, conduct and health and morals of its inhabitants and those of the state, within its territorial limits; the other phase or object of its municipal existence is a private one, not regarded as a branch of the state government, for the peculiar benefit of its own inhabitants, and not of a public or governmental nature--commonly called its "corporate," its "private," its "municipal," or its "ministerial" function. 28 Cyc. 267 (2), 268 (c); 20 Am. & Eng. Ency. Law (2d Ed.), 1131 (111); Barre v. City of Cape Girardeau, 197 Mo. 382, 92 S.W. 330, 6 L. R. A. (N. S.) 1090; 1 Dillon's Municipal Corporations, sec. 66; Alexander v. City of Vicksburg, 68 Miss. 564. Within the first class of powers and duties (governmental) are such functions as administering justice within its limits and police protection; the appointing of officers charged with conserving the public health; the establishment of regulations for the suppression of vice (Barre v. City of Cape Girardeau, supra); and the maintaining of fire protection for the people generally and their property. Alexander v. City of Vicksburg, supra. Within the second (private or corporate) class of powers and duties exercised by municipal corporations falls those that are conferred upon the corporation for its private benefit, and in which the state at large is not directly interested. These are such functions as the establishment and operation of gas works, water works, the construction of sewers, and especially the building and maintaining of highways and streets within its municipal limits. 1 Dillon's Municipal Corporations, sec. 58; 28 Cyc. 268 (c); Barre v. City of Cape Girardeau, supra. For damages resulting from the negligent acts, misfeasance or nonfeasance of its officers, agents and employees charged with the duty of performing the public or governmental function of a municipal corporation, it is not liable civilly. 29 Cyc. 1257 (2); 20 Am. & Eng. Ency. Law (2d Ed.), 1193 (7); Alexander v. City of Vicksburg, supra. But for the torts or negligent acts of its agents, employees and officials engaged in its ministerial, private, or corporate functions the municipality is liable to respond civilly in damages to the injured person. The rule of respondeat superior applies in the latter case to all municipal corporations or an individual in like case, except that against the municipal corporation, punitive, as distinguished from compensatory damages, cannot be recovered for the...

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