Fawbush v. Louisville & Jefferson County Metropolitan Sewer Dist.

• Decision Date: 12 June 1951
• Citation: 240 S.W.2d 622
• Parties: FAWBUSH v. LOUISVILLE & JEFFERSON COUNTY METROPOLITAN SEWER DIST.
• Court: United States State Supreme Court — District of Kentucky

Page 622

240 S.W.2d 622

FAWBUSH v. LOUISVILLE & JEFFERSON COUNTY METROPOLITAN SEWER DIST.

Court of Appeals of Kentucky.

June 12, 1951.

Hottell, Stephenson & Allen, Louisville, for appellant.

Blakey Helm, Louisville, for appellee.

WADDILL, Commissioner.

The question presented for decision is whether appellee, Louisville and Jefferson County Metropolitan Sewer District (hereinafter referred to as the Sewer District) is liable for torts committed by its servants, while acting within the scope of their employment.

The appellant, Vernon Fawbush, was sitting in a parked automobile on his property. An employee of the appellee was operating a truck belonging to it in which a crane was being transported. The boom of the crane came into contact with telephone wires over the street, causing a wooden support on a house to which the wires were attached to be jerked loose, striking appellant. He was seriously injured.

Appellant filed suit seeking damages on account of his injuries. The court sustained the demurrer of appellee to the petition. Appellant, having declined to plead further, judgment was entered dismissing his petition.

The Sewer District is an independent public corporation; it is autonomous and economically self sustaining. It was created under an enabling Act. Acts of 1946, Ch. 104, now Chapter 76, Kentucky Revised Statutes. The statute was held constitutional in Veail v. Louisville & Jefferson County Metropolitan Sewer District, 303 Ky. 248, 197 S.W.2d 413. By virtue of the statute and the action of proper city and county authorities, there was transferred to the Sewer District the 'complete jurisdiction, control, possession, and supervision' of all the existing sewer and drainage facilities of Louisville, located within and without its boundary. The Sewer District supplanted the function of the 'Commissioners of Sewerage' of Louisville, created by a 1906 Statute. It appears that from 1906 to 1940, the 'Commissioners of Sewerage' contructed the sewerage system and the City of Louisville maintained the sewers. From 1940 to 1947 the City of Louisville performed all the sewer work. Since July, 1947, the entire sewer work in Louisville has been done by appellee.

The question of the liability of the 'Commissioners of Sewerage,' for the negligence of its servants, under the 1906 Statute, was before this tribunal in several cases. It was held that the sewerage commission was performing a governmental function and for that reason it was not liable. Smith's Adm'r v. Commissioners of Sewerage of Louisville, 146 Ky. 562, 143 S.W. 3, 38 L.R.A., N.S., 151; T. B. Jones & Co. v. Ferro Concrete Const. Co., 154 Ky. 47, 156 S.W. 1060; City of Louisville v. Frank's Guardian, 154 Ky. 254, 157 S.W. 24; Johnson's Adm'r v. Commissioners of Sewerage of Louisville, 160 Ky. 356, 169 S.W. 827.

The first section of the 1946 Act, KRS 76.010, provides that the Sewer District is being established in the interest of public health and for the purpose of providing adequate sewer and drainage facilities.

Section 19 of the Act, KRS 76.210, under the section title, tax exemptions, reads as follows: 'It is hereby found and declared that the creation of the district and the carrying out of its corporate purposes is in all respects in the interest of the public health and is a public purpose; that the district is performing a governmental function in the exercise of the powers conferred upon it by this chapter and it shall be required to pay no taxes or assessments upon any property owned or acquired by it, under its jurisdiction, control, possession, or supervision, or upon its activities in the operation and maintenance of its facilities. * * *'

Appellant argues that the...