Coffman v. City of Pulaski

• Decision Date: 18 September 1967
• Citation: 422 S.W.2d 429,220 Tenn. 642,24 McCanless 642
• Parties: , 220 Tenn. 642 John Edward COFFMAN, Plaintiff in Error, v. CITY OF PULASKI, Defendant in Error.
• Court: Tennessee Supreme Court

Page 429

422 S.W.2d 429

24 McCanless 642, 220 Tenn. 642

John Edward COFFMAN, Plaintiff in Error, v. CITY OF PULASKI, Defendant in Error.

Supreme Court of Tennessee.

Sept. 18, 1967.

Rehearing Denied Jan. 8, 1968.

Joe W. Henry, Jr., Pulaski, of counsel, Henry, Henry & Lewis, Pulaski, for plaintiff in error.

David E. Cheatham, Pulaski, for defendant in error.

OPINION

HUMPHREYS, Justice.

This case is here on appeal from a judgment sustaining a demurrer to plaintiff-in-error's declaration, and dismissing his suit.

Plaintiff-in-error sued the City of Pulaski for personal injuries sustained when he was shot by a city policeman trying to capture and arrest him. It was specifically alleged the acts complained of were committed by the City in its governmental capacity, by a policeman with respect to whose employment the City was not negligent; and that the City had not waived its immunity by providing indemnity insurance.

The City's demurrer made the point it could not be held liable for the negligent act of its policeman on the grounds alleged in the declaration.

This demurrer was sustained, and the case is before us on the contention that, while it is well settled law in Tennessee that a municipality cannot be held liable in a tort action for the negligence of one of its policemen in the enforcement of municipal penal ordinances or the penal laws of the State, this Court should overrule these cases and abolish the immunity from tort liability created by them.

This contention is predicated on the grounds that there was no such immunity from liability for tort at the common law, Russell v. Men of Devon, 100 English Reports, Reprint, p. 359, and that this was recognized in Tennessee by our first reported case involving a tort action against a city, Mayor, etc., of Memphis v. Lasser, 28 Tenn. 757 (1849). And so the rule exists without common law warrant and should be abolished. Secondly, it is contended the rule is unjust, that this has been recognized by eminent law writers and other jurisdictions, and so we should abolish it.

The City of Pulaski contends that our cases have settled the proposition that police officers are state officers in the enforcement of penal strictures of the state police power so that the governmental subdivisions for whom they immediately act are within the scope of the protection afforded by Article 1, § 17 of the Constitution of Tennessee, providing, 'suits may be brought against the State in such manner and in such courts as the Legislature may by law direct'. And that the legislature has not made any provision for a suit of this character.

We have concluded the judgment of the trial court must be affirmed.

The rule that a municipality is immune from liability for the torts of a police officer in enforcing penal ordinances and criminal laws is established in Tennessee by a number of cases. Pesterfield v. Vickers, 43 Tenn. 205 (1860); Davis v. Knoxville, 90 Tenn. 599, 18 S.W. 254 (1891); Combs v. City of Elizabethton, 161 Tenn. 363, 31 S.W.2d 691 (1930); Bobo v. City of Kenton, 186 Tenn. 515, 212 S.W.2d 363 (1948); Jackson v. City of Paris, 33 Tenn.App. 55, 228 S.W.2d 1015 (1950); Howard v. City of Chattanooga, 170 Tenn. 663, 98 S.W.2d 510 (1936); O'Quin v. Baptist Memorial Hospital 184 Tenn. 570, 201 S.W.2d 694 (1947); Johnson v. City of Jackson, 194 Tenn. 20, 250 N.W.2d 1, 33 A.L.R.2d 756 (1952); Mayor and Aldermen of Town of Morristown v. Inman, 47 Tenn.App. 685, 342 S.W.2d 71 (1960). So the trial judge correctly applied the law to this case.

As to the argument that we should abolish this doctrine of immunity because it is without warrant in the common law as adopted in this State by our Constitution, (which adopted the common law of England as in force in North Carolina in 1796), it is sufficient to say that, accepting the plaintiff-in-error's own argument that the common law should be written by judges to meet the needs of the society expected to act thereunder, it lay within the power of the Supreme Court of this state to adopt and promulgate the doctrine of immunity presently under assault and the absence of an English precedent is immaterial to its validity.

But we are not entirely satisfied, in spite of opinions expressed to the contrary, that Russell v. The Men of Devon, 100 English Reports, Reprint, p. 359, is not authority sustaining the common law origin of the immunity doctrine. (It is argued the doctrine in the United States, and so in Tennessee, came from this case, but that the case does not support it). For, while it is true Lord Kenyon, Chief Justice, predicated his conclusion against the maintenance of a tort action against a county governmental subdivision primarily on policy and logic, Ashhurst, J., who also wrote an opinion in the case based his decision primarily on the proposition there was no such cause of action as the plaintiff was seeking to maintain. We quote:

'It is a strong presumption that that which never has been done cannot by law be done at all. And it is admitted that no such action as the present has ever been brought, though the occasion must have frequently happened.'

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'Thus this case stands on principle: but I think the case cited from Brooke's Abridgment is a direct authority to show that no such action could be maintained.' 100 English Reports, Reprint, pp. 362--363.

And Lord Kenyon closed his opinion on the case with the statement:

'Therefore I think that this experiment ought not to be encouraged; there is no law or reason for supporting the action; and there is a precedent against it in Brooke:' 100 English Reports, Reprint, p. 362.

It is evident from these quotations the King's Bench was of opinion the action was not maintainable at the common law, in addition to being of opinion the action was not maintainable as a matter of policy.

Nor can we agree with plaintiff-in-error's contention that Mayor, etc., of Memphis v. Lasser, 28 Tenn. 757 (1849) first settled the law in Tennessee against the doctrine of immunity we have under consideration, and that the law as thus settled in that case was later departed from without any justification.

While in that case this Court did hold that a municipal corporation was liable to suit for its own tort in digging a cistern occupying about two-thirds of the sidewalk and leaving it uncovered, day and night, without guard or enclosure, and also without light or signal at night, or other precaution to warn pedestrians of the danger to which they were exposed, a liability still recognized and enforced, the opinion of the court expressly recognized there was no tort liability by reason of the respondeat superior doctrine for public, governmental acts, the doctrine on which the case under consideration is predicated, in this language:

'The court in this case did not err, therefore in tacitly assuming, as a matter of law, that the construction of the work in question was within the scope of the powers conferred, and for the private benefit of the corporation. The principle relied upon to maintain the distinction attempted to be taken by the consel (sic) for the plaintiffs in error is correct, but is altogether misapplied to the facts of the case under consideration. It may be admitted that a corporation exercising a power conferred by law for the benefit of the public would not be liable for the negligence of its agents, if acting within the scope of its authority, and if guilty of no negligence in the discharge of the duties with which it was charged. The corporation in such case would be upon the footing of a public officer required to perform a duty which could not be discharged without the employment of agents or servants, and to such cases the doctrine of respondeat superior does not apply. But the plaintiffs in error sustained no such relation to the public as to bring them within the operation of this principle. Their charter is a special franchise for the private benefit and emolument of the city of Memphis, although the public may no doubt be benefited by it. It was held by this court in the case of Humes v. Mayor and Aldermen (1 Humph. 403) that a municipal corporation for the government of a town or city is the proprietor of the streets, which it holds as easements, in trust, for the benefit of the corporation, and which it has the power to grade, pave or otherwise improve.' (Emphasis supplied) 28 Tenn. 759, 760.

So, while Mayor and Aldermen of Memphis v. Lasser is authority for the right to maintain a suit against a municipal corporation for its own torts in its maintaining and keeping safe its streets and sidewalks, it never was authority that the doctrine of respondeat superior might visit vicarious liability on a corporation for the torts of a public officer required by law to enforce the penal aspects of the police power of the state.

As to plaintiff-in-error's contention the rule is so unjust this Court should not wait for legislative attention to it, but should abandon all idea of any immunity and join an alleged throng of indignant judges busily engaged in sweeping away the rule, we point out that although this rule has been under attack, as are all rules of restraint, virtually since its postulation, we find only a very few jurisdictions whose judges have...