City of Tampa v. Easton

• Decision Date: 26 November 1940
• Citation: 145 Fla. 188,198 So. 753
• Parties: CITY OF TAMPA v. EASTON.
• Court: Florida Supreme Court

198 So. 753

145 Fla. 188

CITY OF TAMPA v. EASTON.

Florida Supreme Court

November 26, 1940

Error to Circuit Court, IIillsborough County; L. L. Parks, Judge.

Action by Charles W. Easton against the City of Tampa to recover damages for injuries to the plaintiff's automobile which was struck by an automobile truck owned by the defendant. To review a judgment in favor of the plaintiff, the defendant brings error.

Judgment affirmed.

COUNSEL

Alonzo B. McMullen and Ralph A. Marsicano, both of Tampa, for plaintiff in error.

Joseph P. Lieb and A. Pickens Coles, both of Tampa, for defendant in error.

Wm. M Madison, of Jacksonville, and O. S. Thacker, of Kissimmee amicus curiae.

OPINION

WHITFIELD Presiding Justice.

The writ of error herein was taken to a judgment of the circuit court awarding damages against the city for injuries to defendant in error and his automobile, alleged to have been caused by the negligence of a named driver of an automobile truck owned by the city while it was being operated on a designated street of the city with the knowledge or consent of the city. It is contended that the city is not in law liable for the injury on the alleged ground that the truck was owned by the city and was being operated by a named driver on the city streets with the knowledge and consent of the city when the alleged negligence of the driver caused the injury.

Unlike a county, a municipality is not a subdivision of the State with subordinate attributes of sovereignty in the performance of governmental functions and correlative limited privileges immunities and exemptions from liability for negligence of its employees or in other respects as may be recognized or provided by law. A municipality is a legal entity consisting of population and defined area, with such governmental functions and also corporate public improvement authority as may be conferred by law in a charter or other legislative enactment under the constitution.

A municipality's governmental functions and its corporate, proprietary or public improvement authority must of necessity be exercised or performed by officers, agents and employees of the municipality. The governmental functions and the corporate duties and authority of a municipality may be regarded as being distinct, with different duties, privileges or immunities and, as to corporate matters, correlative liability for negligence of its officers and agents in performing or omitting municipal nongovernmental or corporate duties or authority as may be in accord with statutory provisions or common-law principles. The liability of municipal corporations in their governmental functions or in their corporate duty or authority in furnishing public corporate improvements or facilities, is regulated by substantive law. See Keggin v. Hillsborough County, 71 Fla. 356, 71 So. 372; City of Tallahassee v. Fortune, 3 Fla. 19, 52 Am. Dec. 358. What are governmental functions and what are corporate authority or duties of a municipality are not comprehensively defined in the law but are to be determined in each case upon a judicial interpretation and application of appropriate provisions or principles of law to the facts legally shown or admitted as may be provided by controlling substantive and procedural law.

The maintenance of appropriate and reasonably safe streets and a necessary sewer system is a municipal corporate authority or duty under controlling statutes; and authority to properly use motor vehicles in such maintenance is necessarily implied from the authority or duty.

It is a duty of the municipality to be diligent in keeping its streets in a safe condition as to their lawful use as well as their surface requirements. When a municipality owns a motor truck, a dangerous instrumentality when in operation, that is being operated with the knowledge and consent of the municipality through its officers or employees and used on the streets for lawful street, sewer or other corporate purposes, the municipality may be liable for injuries to persons or property proximately caused by negligence of the truck driver in operating the truck on the streets which are required by law to be maintained by the municipality in a reasonably safe condition for traffic thereon, in the absence of a defense duly shown, particularly if the facts constituting the defense are peculiarly within the actual or constructive knowledge of the municipality through its officers or employees. When the plaintiff alleges an injury proximately caused by negligence of the driver of a motor truck on the streets of the municipality, the truck being owned by the municipality and operated with the knowledge and consent of the municipality, the declaration may not be subject to demurrer, since it does not wholly fail to state any cause of action. Whether the declaration is subject to a motion for compulsory amendment under the statute depends upon the contents of the declaration and the applicable law.

Pleas averring factual matters as a defense in such cases should not state conclusions of fact without averments of facts to sustain the asserted conclusions. This is especially the rule when the facts upon which the defense is predicated are peculiarly within the knowledge of the defendant or its officers or employees.

If the evidence adduced is not legally sufficient to sustain the judgment rendered, such evidence may be brought to the appellate court by proper bill of exceptions, so the entire trial proceedings may be reviewed to determine whether alleged rulings of the trial court on the pleadings or the legal sufficiency of the evidence were harmful errors.

'While automobiles may not be classed as per se dangerous instrumentalities, yet because of their speed and weight they may suddenly become extremely dangerous by negligent or inefficient use. The lawmaking power of the state, in recognition of the many and great dangers incident to their use, has enacted special regulations for the running of automobiles or motor vehicles on the public roads and highways of the state. Chapter 5437, Acts 1905; sections 859a et seq., Comp.Laws.1914. These regulations relate primarily to duties that are imposed upon the owners of such vehicles. While these regulations do not expressly enlarge the common-law liabilities of employers for the negligence of the employes, the statute does impose upon the owners of automobiles and motor vehicles duties and obligations not put upon the owners of other vehicles that are not so peculiarly dangerous in their operation, and specifically requires licenses, numbering, etc., for purposes of identifying the owner, and enacts that automobiles shall not be so operated on a public highway 'as to endanger the life or limb of any person.' It is also enacted that in case of accident the name and address of the owner shall be given on request. The owners of automobiles in this state are bound to observe statutory regulations of their use and assume liability commensurate with the dangers to which the owners or their agents subject others in using the automobiles on the public highways. The principles of the common law do not permit the owner of an instrumentality that is not dangerous per se, but is peculiarly dngerous in its operation, to authorize another to use such instrumentality on the public highways without imposing upon such owner liability for negligent use. The liability grows out of the obligation of the owner to have the vehicle, that is not inherently dangerous per se, but peculiarly dangerous in its use, properly operated when it is by his authority on the public highway.' Anderson v. Southern Cotton Oil Co., 73 Fla. 432, text page 440, 74 So. 975, text page 978, L.R.A.1917E, 715; Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 16 A.L.R. 255.

In Keggin v. County of Hillsborough, 71 Fla. 356, text page 360, 71 So. 372, text page 373, Mr. Justice Ellis, speaking for the court, made the following very illuminating statement:

'While a county may, in some respects, resemble a municipality in that both organizations deal with public interests, their differences are so great that the cases discussing the latter's liability in damages for the negligent omission to perform a public duty are not analogous to those in which such a liability is sought to be imposed upon a county. The one feature which sufficiently distinguishes them is that the counties are under the Constitution political divisions of the state, municipalities are not; the county under our Constitution, being a mere governmental agency through which many of the functions and powers of the state are exercised. County of San Mateo v. Coburn, 130 Cal. 631, 63 P. 78, 621. It therefore partakes of the immunity of the state from liability. Many of the powers exercised by a municipality, such as building and maintaining streets, erecting and operating water supply systems, lighting and power plants, are, in their nature and character, corporate rather than governmental. The corporation being organized voluntarily by the citizens of the locality for the purpose of local government, it is given the power and charged with the duty by the state of keeping the streets in a safe condition. 2 Dillon's Munic. Corp. (4th Ed.) § 1034; City of Key West v. Baldwin, 69 Fla. 136, 67 So. 808. The citizens of a municipality have a proprietary interest in the property and funds of the municipality; the citizens of a county have not. It is a matter of very grave doubt whether a judgment against a county, even in those cases where suits are permitted against it, may be satisfied by attaching or levying upon the moneys in any particular fund, as counsel for the plaintiff in error contend, although no authority is cited in support of the

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