Cones v. Bd. of Com'rs of Benton Cnty.

• Citation: 37 N.E. 272,137 Ind. 404
• Parties: CONES v. BOARD OF COM'RS OF BENTON COUNTY.
• Decision Date: 24 April 1894
• Court: Supreme Court of Indiana

137 Ind. 404

37 N.E. 272

CONES

v.BOARD OF COM'RS OF BENTON COUNTY.

Supreme Court of Indiana.

April 24, 1894.

Appeal from circuit court, Benton county; E. P. Hammond, Judge.

Action by Robert M. Cones against the board of commissioners of Benton county. From a judgment for defendant, plaintiff appeals. Affirmed.

U. Z. Wiley and C. M. Snyder, for appellant. Walker & Gray, for appellee.

HACKNEY, J.

The appellant, by a complaint in two paragraphs, sought damages from the appellee for personal injuries sustained while traveling upon one of the system of free gravel roads of said county, and by reason of defects in the construction and repair of said road. The circuit court sustained a demurrer to each of said paragraphs of complaint, and that ruling is the only error assigned in this court. The appellant's theory is that under the laws of this state authorizing counties to construct free gravel roads, and providing agencies and means for keeping such roads in repair, through the direction and control of the boards of commissioners of the counties, there is an implied liability of such counties for personal injuries resulting from the failure to make such repairs. To this theory are cited the decisions of this court holding that the duty rests upon the counties to keep public bridges in such repair that they are reasonably safe for public travel, and the provision of means with which to make such repairs implies a liability for injuries resulting from a failure to discharge that duty. There are also many cases cited in which cities and towns were held liable where a breach of duty to repair streets resulted in injuries. The appellee's counsel concede the application of the rule so held with relation to bridge repairs and liability, if counties are charged with a duty to repair free gravel roads, and if means are provided for that purpose, but they deny that such duty is charged, or that such means are provided. We feel constrained to deny this concession, and at the same time to agree with the appellant that such duty does exist, accompanied with provision for means to discharge it. The duty and the direction of levies to perform it may be seen from Elliott's Supp. §§ 1446, 1483, 1532, 1591; Acts 1879, p. 226; Rev. St. 1894, §§ 6868, 6869, 6912; Rev. St. 1881, §§ 5104, 5105. Our conclusion will render it unnecessary to set out these provisions.

It is quite true that the principle adopted in the bridge cases is in perfect analogy to the case before us, and, if we would be consistent, those cases would control the present, but we are fully convinced that the principle there adopted, of an implied liability, is not in harmony with the great weight of authority, ancient and modern. This view of these cases is not new. In Board v. Rickel, 106 Ind. 501, 7 N. E. 220, it was said: “It is our deliberate conclusion that the decisions have gone to the very verge in holding a county liable where persons who have entered a bridge have sustained injury because of the negligence of the county officers in constructing or maintaining the bridge, and we can carry the doctrine no further.” In Smith v. Board, 131 Ind. 116, 30 N. E. 949, this was held to be the only exception to the rule that counties are not liable, in the absence of an express statute, for the negligent or tortious acts of their officers and agents. In Morris v. Board, 131 Ind. 285, 31 N. E. 77, it was said, quoting from Board v. Chipps, 131 Ind. 56, 29 N. E. 1066: “The decided weight of authority is that, in the absence of a statute upon the subject, a county is not liable for a failure to keep its bridges in repair,” and, continuing, it was further said: “This being true, while the doctrine as to bridges is so well settled that it should not be changed by judicial decision, yet it affords a valid reason for not extending the doctrine to any other class of cases, even if the logic of the rule would seem to include them.” Again, in Board v. Daily, 132 Ind. 73, 31 N. E. 531, it was said that, “while we regard the liability of counties for negligence in failing to keep bridges in repair as well settled, we recognize the fact that the weight of authority is the other way, and are not disposed to extend the rule so as to embrace other cases.” The liability did not exist at common law, and does not exist by statute with respect to bridges or highways, and the objections to liability are well stated in Hollenbeck v. Winnebago Co., 95 Ill. 151, as follows: “No reason is perceived why a county should be held to respond in damages for the negligence of its officers while acting in the discharge of public corporate duties enjoined upon them by the laws of the state. Counties are but local subdivisions of the state, clothed with but few corporate powers, and these not of a private character * * * In fact, the powers and duties of counties bear such due analogy to the governmental functions of the state that as well might the state be held responsible for the negligent acts of its officers as counties.” This principle was stated in Morris v. Board, supra, as follows: “The most logical and generally accepted theory is that political subdivisions, such as counties and townships, are created to give effect to and enable the citizens to exercise the right of local self-government. State v. Denny, 118 Ind. 449, 21 N. E. 274;White v. Board, 129 Ind. 396, 28 N. E. 846; Such subdivisions are instrumentalities of government, and exercise authority delegated by the state, and act for the state. As the state is not liable for the acts or omissions of its...