Collins v. City of Memphis, 4373.

• Decision Date: 31 August 1936
• Docket Number: No. 4373.,4373.
• Citation: 16 F. Supp. 204
• Parties: COLLINS v. CITY OF MEMPHIS et al.
• Court: U.S. District Court — Western District of Tennessee

16 F. Supp. 204

COLLINS v. CITY OF MEMPHIS et al.

No. 4373.

District Court, W. D. Tennessee, W. D.

August 31, 1936.

Fitzhugh, Murrah & Fitzhugh, of Memphis, Tenn., for plaintiff.

William Gerber, City Atty., and Abe D. Waldauer, Asst. City Atty., both of Memphis, Tenn., for defendant City of Memphis.

MARTIN, District Judge.

The defendants, city of Memphis and its board of water commissioners, have filed a motion to dismiss an action brought by the plaintiff for damages for personal injuries for failure of plaintiff to allege in her declaration that notice of injury was given to the city of Memphis as required by chapter 55 of the Public Acts of the General Assembly of Tennessee for 1913 (section 8596, Code Tenn.1932).

The declaration avers that, while on a visit in Memphis on September 6, 1933, the plaintiff, a Mississippi lady, drove her automobile to the home of her aunt. Alighting at the curbing, she proceeded to walk across the intervening grass plot to the sidewalk and, in so doing, she stepped upon the iron top of a water meter box. She alleges that this iron top turned under her foot and caused her to fall into a deep hole inside the water meter box, as a result of which she was permanently injured.

The declaration states that the city of Memphis and its water commissioners were engaged in the business of selling water to the public, and were operating the water department for profit and gain; that the defendants owned the water meter box upon which plaintiff was injured, and negligently allowed it to remain in a dangerous and defective condition, in that the top of the box was neither locked nor fastened; that this condition had existed for a considerable period of time and was known, or should have been known, to defendants, whose duty it was to keep said meter box, located as it was in a grass plot on which the public was invited to walk, in a safe condition.

The city of Memphis contends that the plaintiff fails to show compliance with a condition precedent to the bringing of this action, because the declaration fails to show that notice of injury was given by the plaintiff, pursuant to the requirements of chapter 55 of the Public Acts of the General Assembly for 1913 (section 8596, Code Tenn.1932). The said statute is quoted in full, as follows:

"An Act entitled `An Act to prescribe the method of bringing suit and to limit the time of bringing suit against municipal corporations on account of injuries to persons or property resulting from the negligence of the officers or employees of said municipal corporations.'

"Section 1. Be it enacted by the General Assembly of the State of Tennessee, That no suit shall be brought against any municipal corporation in this State on account of injuries received by person or property on account of the negligent condition of any street, alley, sidewalk, or highway of such municipality, unless within ninety days after such injury to the person or property has been inflicted; a written notice shall be served upon the Mayor of said municipality stating the time and place where said injury was received, and the general nature of injury inflicted. The failure to give the notice prescribed in this Act within the time set out shall be valid defense against any and all liability of the city which might otherwise exist on account of the defective or negligent condition of said street, alley, sidewalk, or highway; and provided, further, that proof of registered letter by registry receipt addressed to the Mayor setting forth the injury and place of injury complained of shall be a complete compliance with this Act.

"Sec. 2. Be it further enacted, That this Act take effect on September 1, 1913."

The plaintiff insists that this statute was not intended to apply to claims arising out of the conduct by a municipality of a private business enterprise entered into for profit and gain, and entirely outside of its ordinary governmental functions or corporate duties; that as to such injuries a municipality is liable to the same extent that a private owner, engaged in a like business, would be.

The astute attorneys for the plaintiff, in their able brief and argument, invite attention to Bank of U. S. v. Planters' Bank, 9 Wheat. 904, 6 L.Ed. 244, in which the Supreme Court of the United States, speaking through the Chief Justice, said: "It is, we think, a sound principle, that when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted."

They also quote the language of Judge Denison in Audit Co. of New York v. City of Louisville (C.C.A.6) 185 F. 349, 352: "The general rule is well established that, where a city is exercising governmental powers, it is closely limited, and clear authority for each such action must be found in the controlling general or special law of the state, but that, when it is exercising the rights of a proprietor in the management of its property, its council and officers resemble the directors and officers of a private corporation, and, in large degree, the powers of these agents and the responsibility of the city for their acts are governed by the rules applicable to private corporations."

The sound doctrine announced in these cases is not to be gainsaid; and the policy of the United States, in setting up governmental agencies in modern legislation, affords in the terms of the several statutes the right to sue the instrumentalities so created. Tennessee Valley Authority Act of 1933, § 4(b), 48 Stat. 60 (16 U.S.C.A. § 831c(b). The Reconstruction Finance Corporation, by the terms of the act creating it, also may be sued. But the admission of this principle is not determinative against the right of government to place terms, conditions, and limitations upon the right to sue the government or its instrumentalities.

Counsel for plaintiff cite several highly respectable state court authorities, where notice statutes similar to the Tennessee act now under construction have been held of no effect in denying suit in cases where notice of injury has not been given. D'Amico v. City of Boston, 176 Mass. 599, 58 N.E. 158; Henry v. Lincoln, 93 Neb. 331, 140 N.W. 664, 50 L.R.A.(N.S.) 174; Brown v. Salt Lake City, 33 Utah, 222, 93 P. 570, 14 L.R.A.(N.S.) 619, 126 Am.St. Rep. 828, 14 Ann.Cas. 1004; Borski v. City of Wakefield, 239 Mich. 656, 215 N. W. 19; Campbell v. City of Helena, 92 Mont. 366, 16 P.(2d) 1; Safransky v. City of Helena, 98 Mont. 456, 39 P.(2d) 644, 646; Giuricevic v. City of Tacoma, 57 Wash. 329, 106 P. 908, 28 L.R.A.(N.S.) 533; McIntee v. City of Middletown, 80 App. Div. 434, 81 N.Y.S. 124; City and County of Denver v. Taylor, 88 Colo. 89, 292 P. 594, 72 A.L.R. 833; Cook v. City of Beatrice, 114 Neb. 305, 207 N.W. 518.

The first-cited case relied on by plaintiff, D'Amico v. City of Boston, supra, held that a public statute of Massachusetts, requiring notice to be given the city of any injury received by reason of a defect in a highway, does not apply to an injury received on a road over lands acquired by the city for the purpose of constructing a water basin, to be used for commercial purposes, where it had contracted to keep the road in a safe condition for travel until a permanent road was constructed, since its liability under such contract is the same as that of an individual.

Strong doubt is cast as to whether the D'Amico Case has been properly construed as the leading authority for the position taken by the plaintiff, because in a later case, Harobine v. Abbott, 177 Mass. 59, 60, 58 N.E. 284, the Supreme Court of Massachusetts, in affirming a directed verdict for the defendant, said: "This case differs materially from D'Amico v. Boston 176 Mass. 599 58 N.E. 158. In that case the place where the plaintiff was injured had long been a public highway, and was left open for the public to be used, without notice of the discontinuance of the way, and without anything to indicate that it was no longer a public highway. It was actually in use by the public, and there was no other road open for travel between Fayville and Marlboro at that time. Moreover, the city of Boston was then under a contract with the town of Southboro to secure safe and convenient ways of travel between Southboro and the neighboring towns, and between the different parts of the town, during the progress of the work. This contract had been approved by an act of the legislature, and was binding upon the city. The conduct of the city, under these circumstances, was equivalent to a representation to the public that the road was still a public highway, and an invitation to use it as such in the expectation that it would be found safe." It thus seems apparent that the true basis of the decision in the D'Amico Case was the failure of the city of Boston to fulfill its contractual obligation to keep a discontinued highway safe.

But regardless of what would seem to be a misinterpretation by some of the courts of the real meaning of the D'Amico Case, the Michigan, Nebraska, Montana, Utah, and Colorado courts in the cases listed above, cited by plaintiff, have judicially nullified the requirement of notice in statutes where the cause of action arose from negligence of a municipality in carrying on private commercial enterprises. There has not been unanimity of opinion in all the courts which have so nullified the necessity of notice, however. For example, the sharp divergence of opinion in the Nebraska court is conspicuous in Henry v. Lincoln, 93 Neb. 331, 140 N.W. 664, 665, 50 L.R.A.(N.S.) 174.

Thus reasons the court in the majority opinion:

"As generally understood, a municipal corporation occupies a...