Fry v. County Of Albemarle

• Citation: 9 S.E. 1104,86 Va. 195
• Court: Virginia Supreme Court
• Decision Date: 13 June 1889
• Parties: Fry v. County of Albemarle.

9 S.E. 1104

(86 Va. 195)

Fry

v.County of Albemarle.

Supreme Court of Appeals of Virginia,

June 13, 1889.

Counties—Actions—When Maintainable.

An action cannot be maintained against a county for personal injuries, caused by the negligence of a convict of the state penitentiary, while working on a public road under direction of the county because the county, being a part of the sovereign power, cannot be sued in the absence of a statute giving a right to sue in such cases.

Davis & Harman, for plaintiff in error. M. Woods, for defendant in error.

Lacy, J. This is a writ of error to a judgment of the circuit court of Albemarle county, rendered on the 14th day of May, 1888. The plaintiff in error here filed her petition before the board of supervisors of Albemarle county on the 25th day of July, 1887, representing that she came to Charlottesville, in a buggy drawn by one horse, on the 21st day of April, 1887, from a point in the county of Albemarle, in company with another lady who was riding in the same buggy. In the afternoon, about 4:30 p. m., on their way home, they were driving along one of the public roads of Albemarle county, going cautiously and carefully down a hill, when they came to a point where the public road was being worked on by a chain-gang, composed of convicts out of the state-prison, or Penitentiary House at Richmond, organized by the county of Albemarle by authority of an act of assembly in that case made and provided; when, seeing a cart with a mule hitched to it moving up the hill with one of these convicts walking by the side of the cart, they turned out of the way on their right-hand side as far as they could, and stopped, and called out to the convict to look to the mule; that he was very slow to do this, and so slow and negligent about it that the cart collided with the buggy, and turned it, together with its occupants, into the ditch on the road-side, and hurt the petitioner very much, by which she had been caused suffering and loss in physician's fees, and other expenses, and that she believed herself to be permanently injured; that this convict was an employe of the county of Albemarle, and

[9 S.E. 1005]

that the county was therefore liable in damages for these personal injuries inflicted upon her by the county's servant, and she demanded $5,000 for the same. This claim the board of supervisors rejected, and she appealed to the county court, when her petition was again rejected, and thereupon she appealed to the circuit court for the said county, when the judgment of the county court was affirmed, whereupon she brought the case here by writ of error.

The petition was rejected in the county court upon demurrer; so all we have to consider here is the single question whether the petition presents a case for which the county of Albemarle is liable to answer in damages. The decision of the lower courts in this case is founded upon the principle that the sovereign cannot be sued except by its own consent, as may be provided by law; and that in the exercise of its sovereign power it is liable neither for misuser nor non-user; and that a county in this state is a political subdivision of the state for governmental purposes as prescribed by public law, and is no more than the state liable to be sued for its public acts, and that it cannot be held chargeable for the acts of an officer whose duties are fixed and prescribed by law. Suits against the state are allowed by law under certain regulations, and, in certain specified and enumerated cases, counties in this state are authorized to sue and are suable in the circuit court held for such county in their own names, but these are limited. The thirteenth section of chapter 45 of the Code of 1873 provides that "counties may sue in their own names for forfeitures, fines, or penalties given by law to such counties, or upon contracts made with them, and may be sued in their own names, in the circuit court of such county." The legislature has given a remedy in cases growing out of contracts with counties, but it has given no remedy against a county for the negligence of a public officer or servant appointed by law, and we may observe, as...