Conway v. Humbert

• Decision Date: 21 October 1966
• Docket Number: No. 10286,10286
• Parties: Jim D. CONWAY, Special Administrator of the Estate of Betty J. Conway, Deceased, Appellant, v. Robert V. HUMBERT, Leroy Pinney, and City of Sioux Falls, a Municipal Corporation, Respondents.
• Court: South Dakota Supreme Court

Page 524

145 N.W.2d 524

82 S.D. 317

Jim D. CONWAY, Special Administrator of the Estate of Betty

J. Conway, Deceased, Appellant, v. Robert V. HUMBERT, Leroy Pinney, and City of Sioux Falls, a

Municipal Corporation, Respondents.

No. 10286.

Supreme Court of South Dakota.

Oct. 21, 1966.

Boyce, Murphy & McDowell, Marvin D. Keller, Christopherson, Bailin, Wilds & Bailey, Sioux Falls, for appellant.

John E. Burke, Richard Hopewell, Sioux Falls, for respondent, City of Sioux Falls.

ROBERTS, Judge.

Plaintiff brought this action as special administrator seeking recovery of damages on behalf of the estate of his deceased sister, Betty J. Conway. Decedent met her death in an apartment building fire in which she was a tenant. Plaintiff alleged that firemen employed by defendant City of Sioux Falls failed to search the building at the time of the fire for occupants and did not locate decedent and effect her rescue and were also negligent in their methods of resuscitation.

The trial court sustained the motion of the city to dismiss the complaint on the ground that the immunity of a municipal corporation from liability for the negligence of its employees when engaged in a governmental function extends to the protection of persons and property from fire with the result that torts committed by firemen in the performance of their duties do not render the municipal corporation liable. The plaintiff appeals.

Plaintiff challenges the ruling of the trial court. For the purposes of this appeal, the negligence of the firemen may be conceded. The sole question is whether the negligent acts of these employees of the city gave rise to a cause of action against the city. Adherence to prior decisions would result in affirmance. The further question is then presented whether we should recede from the rule of governmental immunity for tort.

A municipal corporation has a dual character and performs dual functions. In the one, it is vested with powers of a governmental character for the administration of the general laws of the state. In the other, it acts in a corporate, private or proprietary capacity. We have held that when acting within its governmental powers a municipality is not liable for tort because in so doing it is merely the agent of the state and partakes of the latter's sovereignty in respect to immunity from tort liability. But it is liable for negligence of its officers and employees when performing duties consequent upon the exercise of its corporate or private powers. Jensen v. Juul, 66 S.D. 1, 278 N.W. 6, 115 A.L.R. 1280 and cases cited; Bucholz v. City of Sioux Falls, 77 S.D. 322, 91 N.W.2d 606.

The basic principle underlying the rule of governmental immunity is sovereignty. This court in State v. Board of Commissioners, 53 S.D. 609, 222 N.W. 583, held that the state is sovereign at all times. Judge Campbell speaking for this court said: 'The purpose and the sole purpose of government in this state, in its actual operation, is to carry out the powers and perform the functions instrusted to it by the people of this state, and there is not, legally speaking, any distinction in the capacity in which the government of the state acts, or in the essential nature of its operation as a matter of law, in the performance of any one function intrusted to it by the people as compared with the performance of other functions so intrusted.' We recognize that in a few jurisdictions the nonsovereign concept has been extended to the state. See annotation in 40 A.L.R.2d 927. We adhere to the view that as a matter of law there can be no distinction between what may be termed a 'sovereign' and a 'nonsovereign' capacity of the state.

In Wisconsin Granite Co. v. State, 54 S.D. 482, 223 N.W. 600, this court said: 'The rule is well established that a state is not liable for the negligence or misfeasance of its officers or agents, except when such liability is voluntarily assumed by its legislature. The doctrine of respondeat superior does not prevail against the sovereign, in the necessary employment of public agents.' The decision was based upon the absence of obligation and not upon the ground that no remedy had been provided.

The established principle of jurisprudence that the sovereign cannot be sued in its own courts is given recognition in Section 27, Article III, State Constitution: 'The legislature shall direct by law in what manner and in what courts suits may be brought against the state.' These provisions do not except tort or other claims against the state. A distinction unquestionably exists between sovereign immunity from suit and sovereign immunity from liability. 49 Am. Jur., States, § 98. A consent statute would not create a cause of action in favor of a claimant. Nonetheless, in the absence of legislative enactment the state is immune from suit and liability for tort committed by an officer or employee in the performance of his duties.

In O'Rourke v. City of Sioux Falls, 4 S.D. 47, 54 N.W. 1044, 19 L.R.A. 789, decided in 1893, it was declared that in the performance of a governmental function a municipal corporation acts as agent of the state and partakes of its sovereignty with respect to immunity. There are delegated to or imposed upon municipalities powers that are discretionary, quasi-legislative or quasi-judicial in character. A municipality is exempt for failure to exercise them or for their exercise in a negligent or improper manner. Hermandson v. City of Canton, 60 S.D. 367, 244 N.W. 525; Nelson v. City of Sioux Falls, 67 S.D. 320, 292 N.W. 868. Some jurisdictions receding from the rule of governmental immunity except the exercise of discretionary powers, legislative or judicial, or quasi-legislative or quasi-judicial functions. Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618; Hargrove v. Town of Cocoa Beach, Fla., 96 So.2d 130, 60 A.L.R.2d 1193; Spanel v. Mounds View School District, 264 Minn. 279, 118 N.W.2d 795; see also Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427.

While the distinction as we have indicated between municipal functions of a governmental character and those of a private, proprietary or ministerial nature is generally recognized, there is no established rule for determination of classification as applied to particular facts. We have said that the nature of the duty performed rather than the character or title of the agent executing the act determines liability. Bucholz v. City of Sioux Falls, supra. The power to organize a fire department for prevention of injury and damage by fire is clearly governmental and, in the absence of statutory provision to the contrary, a municipality will not ordinarily be liable for the negligent acts of firemen in the performance of their duties. 63 C.J.S. Municipal Corporations § 776; see also annotation in 84 A.L.R. 514 supplementing 9 A.L.R. 143 and 33 A.L.R. 688. Plaintiff evidently bases his case upon Walters v. City of Carthage, 36 S.D. 11, 153 N.W. 881 and Bucholz v. City of Sioux Falls, supra. These holdings are distinguishable and do not aid appellant on the issue as to the submissibility of the case before us. The Carthage case held the defendant city liable for an injury to a child in consequence of being struck, while on a sidewalk, by a door of a fire station falling across the sidewalk. An examination of the opinion shows that there was no consideration whatever of the question whether or not the operation of a municipal fire department is an exercise of a governmental function. The court sought to apply the rule that while a municipality is not liable for discretionary acts in planning an improvement within the scope of its authority, it acts ministerially in carrying out the plan and is bound to see that the work is done in a safe manner. The other case involved the use of a rifle range in the basement of a city hall as a recreational area. It is the nature of the activity as stated that determines municipal liability and not the location of a facility nor the fact that it may also be used for governmental purposes. This court held that there was no essential distinction in the matter of liability for negligence in the furnishing of facilities for recreation in a municipal building and the liability of a municipality for injuries occasioned by negligent operation of parks or other public grounds.

Appellant argues that the doctrine of governmental immunity is basically unsound and since the doctrine is of judicial origin an overruling decision should be rendered. The instant case involves the liability of a municipal corporation. Complete abrogation of the common law rule of governmental immunity would apply to all governmental entities including counties, townships, school districts and the like.

The legislature within constitutional limitations unquestionably has control over the liability to which the state and its governmental subdivisions and agencies may be subjected for tort. The legislature recognizing the nonliability of counties and townships for tort in the absence of legislation subjected them together with municipalities to liability for injuries sustained because of defective highways. SDC 1960 Supp. 28.0913; Robinson v. Minnehaha County, 65 S.D. 628, 277 N.W. 324; Williams v. Wessington Township, 70 S.D. 75, 14 N.W.2d 493. A municipality and its governing board are specifically exempted from tort liability where the activity engaged in is the improvement, maintenance or operation of a park which is under the supervision of a park board. SDC 45.2539; see Glirbas v. City of Sioux Falls, 64 S.D. 45, 264 N.W. 196. There is statutory provision permitting counties and cities operating hospitals to contract for liability insurance protecting hospital employees against liability for negligence or malpractice. Ch. 199, Laws of 1955. A subsequent statute, Ch. 276, Laws 1959, authorizes a municipality to obtain insurance coverage 'against such acts or omissions for which the municipality may be...