City Of Radford v. Clark

• Decision Date: 25 January 1912
• Citation: 73 S.E. 571,113 Va. 199
• Parties: CITY OF RADFORD. v. CLARK.
• Court: Virginia Supreme Court

73 S.E. 571

(113 Va. 199)

CITY OF RADFORD.

v.CLARK.

Supreme Court of Appeals of Virginia.

Jan. 25, 1912.

1. Municipal Corporations (§ 745 1/2 ^*)— Exercise of Corporate Powers — Torts — Grounds of Liability.

To render a municipal corporation liable for the torts of its agents and employes, the injury must have resulted from an act done in the exercise of some power conferred on the municipality by its charter, or other positive enactment.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1568, 1569; Dec. Dig. § 7451/2.*]

2. Municipal Corporations (§ 733*) — Streets—Construction and Repair—Operation of Quarry.

A municipal corporation, unless expressly authorized by charter or general law, or unless such power is to be fairly implied as incidental to powers expressly granted, has no authority to operate a quarry either within or without its corporate limits.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1547-1549; Dec. Dig. § 733.*]

3. Municipal Corporations (§ 733*) — Streets — Liability fob Injuries from Use—Authorty to Operate Quarry.

The right to operate a quarry inside the city limits is neither necessary, fairly implied in, nor incidental to the duty of a city to keep its streets in a reasonably safe condition.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1547-1549; Dec. Dig. § 733.*]

4. Municipal Corporations (§ 733*)—Torts —Liability—Unauthorized Maintenance of Quarry.

A municipal corporation is not liable to one whose horse, while driven on a street, was frightened by a quarry blast and ran away and threw him out, when; the city's operation of the quarry causing the fright was unauthorized.

[Ed. Note.—For other cases, see Municipal Corporations, Cent Dig. g§ 1547-1549; Dec. Dig. S 733.*]

5. Municipal Corporations (S 786*) — Streets—Defect—Noises.

Noises outside of the limits of a street, amounting to a public nuisance, do not constitute a defect in the street.

[Ed. Note.—For other cases, see Municipal Corporations. Cent. Dig. §§ 1638-1640; Dec. Dig. § 786.*]

6. Municipal Corporations (§ 736*)—Torts —Public Nuisance—Liability.

A municipal corporation is not liable for injuries caused to persons or property by failing to suppress a public nuisance within its limits,, when such nuisance is not created nor maintained by the express authority of the city, and is not the result of any act done orneglected in the performance of a duty imposed upon the municipality by law, such as the repair of streets, etc.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1552; Dec. Dig. § 736.*]

7. Municipal Corporations (§ 733^2-*)—Governmental Duty — Failure to Prevent Nuisance—Liability.

The operation or control of a rock quarry in which blasting is carried on within 65 feet or more from the street upon which a traveler is injured by the fright of a horse from the blasting was not a positive or ministerial duty, but a governmental duty, for which the city is not liable.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1547-1549; Dec. Dig. | 733.*]

8. Municipal Corporations (§ 736*)—Torts —Public Nuisance—Liability.

Where a city, without authority, operates a quarry 65 feet or more from the public street, so as to make it a nuisance, it is not liable for not preventing the nuisance; it not being connected in any way with the construction or use of the street.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1552; Dec. Dig. § 736.*]

9. Appeal and Error (§ 1175*)—Reversal-Rendering Final Judgment.

Where the Supreme Court of Appeals is of the opinion, in a personal injury case, that the demurrer to the declaration should have been sustained, it will, in view of the presumption that the plaintiff made the strongest presentation of his case which the facts permitted, and that it could not be strengthened by amendment, enter such judgment as the court below should have rendered.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4573-1587; Dec. Dig. § 1175.*]

Whittle, J., dissenting.

Error to Circuit Court, Montgomery County.

Action by Mrs. Mollie P. Clark against the City of Radford. Judgment for plaintiff, and defendant brings error. Reversed.

Harless & Colhoun and H. C. Tyler, for plaintiff in error.

Longley & Jordan, for defendant in error.

CARDWELL, J. The declaration in this action, brought by Mrs. Mollie P. Clark against the city of Radford, consists of five counts, which, after setting out that the defendant is a municipal corporation chartered by the Legislature of Virginia, and charged with the duty of keeping its streets in a reasonably safe condition for use of the public, alleges that said defendant city was on the—— day of September, 1909, through its servants and agents, blasting with powder and other explosive material in, and getting out rock for use on its streets from, a rock quarry, at a distance of 65 feet from a street of the city known as Grove avenue, and that, while the city was so engaged in blasting on the date named, the plaintiff was driving along said street and within 75 feet of the point of the blasting, and without knowledge thereof on her part, when a succession of blasts were set off, frightening her horse, causing it to become unmanageable and suddenly to wheel around in the street, throwing plaintiff violently upon the ground, whereby she was seriously injured, and her buggy and harness destroyed.

The neglect of the city to perform its duty of keeping its streets, and particularly Grove avenue, in reasonably safe condition for the use of travelers thereon, is alleged in the five counts in plaintiff's declaration as follows: The first count charges a failure to give warning of its intention to put off the blasts; the second charges a failure on the part of the city to cover its blasts; the third charges the employment by the city of unskillful, careless, and negligent servants; the fourth merely alleges damages to the buggy and harness; and the fifth combines the negligence alleged in the first, second, and third counts, and practically charges negligence on the part of the city in maintaining or failing to prevent a nuisance, resulting in injury to the plaintiff.

The defendant city demurred in writing to the declaration and each count thereof, which demurrer was by the court overruled, whereupon the plea of not guilty was entered and issue joined; and at a subsequent term of the court a trial by jury was had, resulting in a verdict and judgment against the city for $500 damages in favor of the plaintiff with interest and costs, to which judgment this writ of error was awarded.

Of the eight assignments of error, we find it necessary to consider only the first, which is to the ruling of the court upon the demurrer to the declaration.

"In order to render a municipal corporation liable in damages for the torts of its agents and employes, it is necessary, among other things, that the injury complained of be caused by, or result from, an act done in the exercise of some power conferred upon it by its charter or other positive enactment." Duncan v. City of Lynchburg, 34 S. E. 964, 48 L. R. A. 331; Donables Adm'r v. Town of Harrisonburg, 104 Va. 533, 52 S. E. 174, 2 L. R. A. (N. S.) 910, 113 Am. St. Rep. 1056, and authorities cited in those cases.

In the first of the cases just cited the opinion by Buchanan, J., defines what powers, under the settled law, a municipal corporation can exercise and none other, and it was there held that the city of Lynchburg, either under its charter provisions or the general law relating to such corporations, had no power or authority to create and maintain a nuisance resulting from the operation of a rock quarry outside of the city's limits, although the rock quarried was for use in the construction and maintenance of roads which the city was authorized to con-struct and maintain, the nuisance complained of having been created and continued by the agents or employes of the city while engaged in a work which was without its corporate powers.

In Donable v. Harrisonburg, supra, the injury sued for resulted from the operation of a rock quarry outside of the corporate limits of the town, the stone gotten out to be for use upon the streets of the town, but it was there also held that there could be no recovery for the injury, because the operation of the rock quarry was ultra vires, for the reasons (1) that neither the charter nor the general law gave the town authority to operate a rock quarry; and (2) because the operation of the quarry was carried on outside of the corporate limits.

It has been repeated in the authorities that it might be convenient and even profitable for a municipal corporation, in order to perform certain duties imposed upon it as such corporation to own and operate a rock quarry or other like undertakings, yet it has no power to do so unless in express words conferred in its charter or necessarily or fairly implied in or incidental to the powers expressly granted.

In this case, as in Duncan v. Lynchburg, and Donable v. Harrisonburg, supra, to operate a rock quarry was neither necessary to, fairly implied in, nor incident to, the duty of the city of keeping its streets in a reasonably safe condition, nor essential to the declared objects and purposes of the corporation. We fail to see how a different rule of law is to be applied where the injury sued for resulted from an unauthorized act of a municipality, done within its corporate limits, from that applied by this and other courts, as well as sanctioned by the ablest law writers, to cases in which the tort was committed outside of the corporate limits, for the tort committed either in the one or the other case flows from an ultra vires act.

Neither the charter of plaintiff in error, city of Radford, nor the general laws of the state, authorize the operation, either within or without its corporate limits, of a rock quarry.

It is contended for defendant in error...