Crumbley v. City of Jacksonville
| Decision Date | 22 December 1931 |
| Citation | 138 So. 486,102 Fla. 408 |
| Parties | CRUMBLEY v. CITY OF JACKSONVILLE. |
| Court | Florida Supreme Court |
En Banc.
Error to Circuit Court, Duval County; De Witt T. Gray, Judge.
On rehearing.
Former judgment of reversal adhered to.
For former opinion see 135 So. 885.
Evan Evans, of Jacksonville, for plaintiff in error.
Austin Miller, Gov Hutchinson, Emmet Safay, and Harvey Mabry, all of Jacksonville, for defendant in error.
On the original hearing in this case, reported in 135 So. 885, the court held the amended third count good as against a demurrer, and reversed and remanded the cause, without ruling upon the action of the court below in sustaining the demurrer of defendant in error to the fourth count of plaintiff's declaration. On petition for rehearing it is insisted that the question raised as to the legal sufficiency of said fourth count will arise upon the further prosecution of this case in the court below, and this court has been urgently requested to review the action of the court below in sustaining the demurrer to this count. The court decided to and did grant a rehearing for a consideration and review of this particular question.
The allegations as to negligence and injury contained in said fourth count are quite similar to those contained in the third count, but in addition thereto the fourth count alleges that at the time of plaintiff's injury the defendant city was engaged in the business of generating and selling electricity to and for the public, and that plaintiff's injury was caused by the negligence of the defendant city occurring in the prosecution of the defendant's said electrical business. It is unnecessary to set out in detail the allegations in this respect. The main question which has been argued by counsel for the respective parties as to the legal sufficiency of the fourth count is based on the fact that said count entirely omits to allege that any notice whatever had been given to the defendant city as required by a provision on that subject in the city charter. Counsel for the city of Jacksonville, defendant in error here, contends that this omission was fatal to the legal sufficiency of said count, whereas counsel for plaintiff in error insists that the allegation in said count that the city was engaged in generating and selling electricity, as hereinabove quoted, rendered it unnecessary for plaintiff in error to give such notice or allege it in his declaration, upon the ground that the provision of the city charter with reference to notice is either unconstitutional and void in any case, or that it is not constitutionally applicable to cases based upon negligence of the city in carrying on the business of generating and selling electricity. While this question was not ruled upon on the former hearing, the contentions of counsel for plaintiff in error were summarized in the opinion of the court, and we deem it unnecessary to repeat them here.
It is true that this court held in the case of the City of Sebring v. Avant, 95 Fla. 960, 117 So. 383 that the city in that case, being engaged in generating and selling electricity, came within the operation of the Hazardous Occupations Act, sections 4971-4974, Rev. Gen. St sections 7058-7061, Comp. Gen. Laws, and could not therefore interpose the plea of assumption of risk as a defense in a suit for damages for personal injuries inflicted upon an employee of the city. While this case is not brought by an employee, and hence the hazardous statute does not apply, it is argued that the decision cited recognizes the principle that, when a city is engaged in one of the hazardous occupations mentioned in the general statute referred to such city not only comes within the operation of said statute and its liabilities and defenses must be measured thereby, in cases within the operations of such statute, but that, in all cases based on negligence of a city in the course of the conduct by it of such a business, it is governed by general law and cannot set up any defense which any other corporation or person engaged in the same sort of business could not set up. We do not think the Sebring Case affords a basis for this contention, especially in an action brought by one not an employee, and to whom the Hazardous Occupations Act does not apply.
While the argument that, when a city is engaged in the business of generating and selling electricity, its liabilities for torts committed in the operation of such business should be governed in all respects by general law applicable to all persons and corporations engaged in such business, and that therefore a statutory requirement of notice as a condition precedent to suit against a city would constitute class legislation, is a very plausible argument, the fact remains that there are such vital differences and distinctions between municipal corporations and private corporations, or individuals, as to afford some reasonable basis for the Legislature to make a different classification and rule with reference to many matters affecting cities and towns which do not apply to private corporations or private persons, without offending against those provisions of our State and Federal Constitutions which in effect forbid class legislation and which guarantee the equal protection of the laws. Const Declaration of Rights, § 12, and article 3, § 21; Const. U.S. Amend. 14. Thus, while a city may be engaged in the business of generating and selling electricity, it is not supposed to be so engaged primarily for profit, but to secure to its citizens, at a fair and reasonable cost, the benefit of what has become a necessary public utility, and, even though some incidental profits should result from such business, the funds thus produced are public funds of the city which can only be used by the city for legitimate municipal purposes, thus making it possible to reduce the amount of general taxation upon its citizens. Indeed there might be a serious question about the constitutional right of a city to engage even in a public utility business for the primary purpose of amassing profits. However, that question is not presented here, and we need not discuss it. Furthermore, the Legislature might reasonably deem it wise and necessary to throw certain safeguards around municipal corporations to protect...
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...91 Wash. 467, 157 P. 1084; Sheer v. Everett (1925) 134 Wash. 385, 235 P. 789; Crumbley v. Jacksonville (1931) 102 Fla. 408, 135 So. 885, 138 So. 486, 487; Western Salt Co. v. San Diego (1919), 181 Cal. 696, 186 P. In the first-cited case, O'Neil v. Richmond, 141 Va. 168, 126 S.E. 56, 57, th......
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