O'Connell v. Merchants' & Police Dist. Telegraph Co.

• Decision Date: 17 December 1915
• Citation: 180 S.W. 845,167 Ky. 468
• Parties: O'CONNELL v. MERCHANTS' & POLICE DIST. TELEGRAPH CO.
• Court: Kentucky Court of Appeals

180 S.W. 845

167 Ky. 468

O'CONNELL v. MERCHANTS' & POLICE DIST. TELEGRAPH CO.

Court of Appeals of Kentucky.

December 17, 1915

Appeal from Circuit Court, Kenton County, Common Law and Equity Division.

Action by Russell O'Connell, suing by his next friend, against the Merchants' & Police District Telegraph Company. Judgment for defendant, and plaintiff appeals. Reversed, and case remanded, with instructions to overrule demurrer to petition, etc.

B. F Graziani, of Covington, for appellant.

C. B Thompson, of Covington, for appellee.

MILLER C.J.

The appellant, Russell O'Connell, a minor, who sues by his next friend, appeals from a judgment of the circuit court that sustained a demurrer to his petition. The petition, in substance, states that the defendant, the Merchants' &amp Police District Telegraph Company, was at the time the plaintiff was injured a private corporation, engaged in the business of running and operating a wagon for the purpose of carrying persons to and from the jail, and to and from the hospital, or carrying the injured or sick from the streets highways, and buildings of the city of Covington, to their homes, hospitals, or jails; that on March 20, 1913, while plaintiff was traveling along Madison avenue near the intersection of Sixth street, in Covington, the defendant, with gross and wanton carelessness and negligence upon the part of its servants, ran its team and wagon over the plaintiff, severely and permanently injuring him in the several ways detailed in the petition, to his damage in the sum of $5,000; that at the time it inflicted the injuries upon the plaintiff the defendant was hired by the city of Covington and paid a sum of money under contract for its services, and was operating its team and patrol wagon, through its agents and officers, for a payment of money and gain.

The circuit court rested its judgment sustaining the demurrer to the petition upon the authority of the case of the Bluegrass Traction Company v. Grover (1909) 135 Ky. 685, 123 S.W. 264, 135 Am.St.Rep. 498, and similar cases, which hold that, where a county performed its governmental functions through a contract with another, the contractor was not liable for negligence in the performance of the work, when the county would not have been liable if it had performed the work through its own employés. See, also, Schneider v. Cahill, 127 S.W. 143, 27 L.R.A. (N. S.) 1009; Ockerman v. Woodward, 165 Ky. 752, 178 S.W. 1100.

It is generally held that, where one contracts with a municipal corporation to keep its streets in repair, he takes upon himself the duty of the city towards the public, and, if the municipality would be liable for its negligence in such a case, so is the contractor, whose negligence caused the injury.

But the converse of that proposition, which exempts the contractor from liability for his own negligence in case the city would not be liable if it had been guilty of negligence in doing the same work, is of comparatively late origin, and this rule is by no means universal in its application. There are many exceptions to it; and the consequences of extending the doctrine of nonliability while in the performance of governmental functions makes us unwilling to say that all the various functions of municipal government can be performed by agents or contractors without liability to persons injured through their negligence in the performance of such work. An instance of an exception to the rule is found in the liability to individuals of water companies performing the governmental function of furnishing water for fire protection. This liability has been upheld in this state as resting upon the breach of the contract made for the benefit of the individual. Graves County Water Co. v. Ligon, 112 Ky. 775, 66 S.W. 725; Terrell v. Louisville Water Co., 127 Ky. 77, 105 S.W. 100.

In Bluegrass Traction Co. v. Grover, supra, the traction company had built a bridge over the Southern Railway Company's track, under an agreement with the fiscal court of the county to maintain the bridge forever, free of cost to the county. The bridge formed a part of the county road. The traction company permitted the bridge to get out of repair, with the result that a valuable horse belonging to Grover was injured while crossing the bridge. Grover recovered a judgment against the traction company, which was reversed by this court, upon the theory that, since, the county being an arm of the state government and exercising a part of the powers of the state, and created by the Legislature for that purpose, neither it nor any of its officials could be held liable for damages in the performance of that duty, the traction company, which had taken over that duty, was likewise not liable. In the course of the opinion the court said:

"To hold that the county is not responsible for a defect in the highway, but that the contractor who agrees with the county to discharge the duty which the law places upon the county is responsible to a traveler injured by a defect in the highway, would be to overlook the reason upon which the rule rests; for, if such liability existed, the county would be unable to make contracts for the keeping in repair of its highways on as reasonable terms as it can where it must only pay a reasonable price for the necessary work, because, if the contractor assumes the greater liability, he must necessarily take this into consideration in fixing the price for which he may do the work."

The court further said:

"The bridge was a part of the county highway, and, unless the traction company became liable by reason of its contract with the fiscal court, or by some other fact shown in the case, then it is not liable to Grover for an injury to his mare while traveling on the public highway by reason of a defect in it."

The opinion then quotes the contract between the traction company and the county at length, and closes as follows:

"To hold the traction company liable for such damages on a contract to maintain the bridge free of cost to Fayette county would be to extend the obligation of the contract beyond the fair and natural meaning of its terms."

It will be observed that the conclusion there reached is based entirely upon the idea, which is emphasized, that the traction company's relation with the county was contractual only, and that it was therefore liable in the same way and to the same extent, and no further, than the county would have been liable. Grover sought a recovery by reason of the contractual relation of the traction company.

But conceding that the city of Covington would not have been liable to the plaintiff for the accident inflicted upon him in this case if the city had been operating the wagon, because it would then have been performing a govermental function, does it follow that the appellee is not liable for its own negligence in performing that work? We think this question is answered by the opinion of this court in Jones & Co. v. Ferro Concrete Construction Company, 154...