Defender v. CITY OF McLAUGHLIN, SOUTH DAKOTA

• Citation: 228 F. Supp. 615
• Decision Date: 10 April 1964
• Docket Number: Civ. No. 968.
• Parties: Donald DEFENDER, Plaintiff, v. The CITY OF McLAUGHLIN, a Municipal Corporation, of the State of SOUTH DAKOTA, Wallace Biederstedt, Defendants.
• Court: United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota

228 F. Supp. 615

Donald DEFENDER, Plaintiff, v. The CITY OF McLAUGHLIN, a Municipal Corporation, of the State of SOUTH DAKOTA, Wallace Biederstedt, Defendants.

Civ. No. 968.

United States District Court D. South Dakota, N. D.

April 10, 1964.

Joe L. Maynes, Aberdeen, S. D., for plaintiff.

W. A. Hackett, of Austin, Hinderaker & Hackett, Watertown, S. D., Bormann & Buckmeier of Mobridge, S. D., and Stanley E. Siegel of Agor, Siegel, Barnett & Schutz, Aberdeen, S. D., for defendant City of McLaughlin.

Robert L. Tschetter, McIntosh, S. D., and William R. Tschetter, Watford City, N. D., for defendant Wallace Biederstedt.

BECK, District Judge.

This is a motion for a summary judgment by which the City of McLaughlin seeks a dismissal of the action insofar as its interests are affected and this on a claim that there is no genuine issue as to any material fact and that the City is entitled to such a judgment as a matter of law.

As to the controlling facts there is no dispute. The amended complaint shows the City as a municipal corporation, organized, licensed and existing under the laws of South Dakota, the other defendant also a citizen of this state and the plaintiff a citizen of North Dakota. It is alleged, too, that Wallace Biederstedt, the other defendant, at, before and since the time of the alleged injury, was, has been and is the City's police officer; that he in that capacity was acting under call and by virtue of his office; that he at all times mentioned in the amended complaint was its "agent, employee and servant" and that in the performance of his duties as such police officer and in the process of attempting to arrest the plaintiff for a misdemeanor, allegedly committed in Biederstedt's presence, "did negligently, carelessly, wantonly, recklessly, unlawfully and intentionally fire several shots from a revolver or pistol, one of which struck Plaintiff in the back * * *", causing injuries which allegedly are disabling and permanent.

Other allegations are to the effect that the plaintiff complied with the provisions of Chapter 251 of the 1961 Session Laws of the State of South Dakota; that the City was negligent in its hiring and employing of Biederstedt as its police officer and that such negligence and continuance thereof amounted to actionable nuisance. Aside from those allegations there is in the evidence submitted in conjunction with the motion, undisputed proof that the City at the time of the suit carried liability insurance, limited, however, to a "Manufacturers and Contractors Liability Policy".

With those facts admitted under the motion, the City, in the main, rests its defense on the familiar rule, established in O'Rourke v. City of Sioux Falls, 4 S.D. 47, 54 N.W. 1044, 19 L.R.A. 789 (1893) that:

"* * * where the power is conferred upon the municipality as one of the political divisions of the state, and conferred, not for any benefit to result therefrom to such municipality, but as a means in the exercise of the sovereign power for the benefit of the public, the corporation is not answerable for nonfeasance or misfeasance by its public agents. Maxmilian v. Mayor, 62 N.Y. 160; Eastman v. Meredith, 36 N.H. 284; Robinson v. Greenville, 42 Ohio St. 625; Lafayette v. Timberlake, 88 Ind. 330; Dill. Mun. Corp. (4th Ed.) § 975. In the enactment of ordinances, and in the appointment of officers and agents for their enforcement, the municipality is exercising a governmental authority, and, within its limits, acts as the representative of the state, and its officers are regarded as agents, not of the city corporation, but of the state. Their powers and duties are derived from the law, and not from the city under which they hold their appointment. In Buttrick v. City of Lowell, 1 Allen, 172, Bigelow, C.J., says: `Police officers can in no sense be regarded as servants or agents of the city. Their duties are of a public nature. Their appointment is devolved upon cities and towns by the legislature as a convenient mode of exercising a function of government, but this does not render the cities and towns liable for their unlawful or negligent acts.' See, also, Maxmilian v. Mayor, supra; Norristown v. Fitzpatrick, 94 Pa.St. 121; Hayes v. City of Oshkosh, 33 Wis. 314."

For other cases, more recent, showing adherence to the immunity defense in cases of this kind, see Jensen v. Juul et al., 66 S.D. 1, 278 N.W. 6, 115 A.L.R. 1280 (1938) Hurd v. Blomstrom, 72 S.D. 526, 37 N.W.2d 247 (1949), Burkard v. City of Dell Rapids, 76 S.D. 56, 72 N.W. 2d 308 (1955) and Bucholz v. City of Sioux Falls, 77 S.D. 322, 91 N.W.2d 606 (1958). Of particular significance as to the existence of that rule in this state as late as in 1958 and its application to the facts in this case, are the comments in Bucholz, 91 N.W.2d at page 608:

"The law is settled by numerous decisions of this court that a municipal corporation is not liable for the negligence of its officers or agents when in performance of a governmental function, but is liable in the same manner as an individual or corporation for tort committed in its corporate or proprietary capacity. citing O'Rourke, Jensen, Hurd and Burkard, supra. The doctrine of respondeat superior under which an employer is liable for the negligent acts of his employees in the course of their employment applies in a proper case to the acts of municipalities done in their corporate or proprietary capacity and liability exists, but not to those which they perform as functions of government delegated by the state. McQuillin, Municipal Corporations, 3rd Ed., § 53.65; Gebhardt v. Village of LaGrange Park, 354 Ill. 234, 188 N.E. 372; Florey v. City of Burlington, 247 Iowa 316, 73 N.W.2d 770; Hill v. Housing Authority of City of Allentown, 373 Pa. 92, 95 A.2d 519. As was noted in Jensen v. Juul, supra, a municipality is not in any instance liable for tortious acts which are wholly outside of the powers conferred upon it. It is, however, liable for the torts of officers and agents acting within the general scope of its corporate powers and in the

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