O'Gara v. City of Dayton

• Decision Date: 04 May 1917
• Citation: 175 Ky. 395,194 S.W. 380
• Parties: O'GARA ET AL. v. CITY OF DAYTON. [a1]
• Court: Kentucky Court of Appeals

194 S.W. 380

175 Ky. 395

O'GARA ET AL. v. CITY OF DAYTON. ^[a1]

Court of Appeals of Kentucky.

May 4, 1917

Appeal from Circuit Court, Campbell County.

Suit by Sadie O'Gara and husband against the City of Dayton. Demurrer to petition was sustained, and plaintiffs appeal. Reversed and remanded.

Hubbard Schwartz, of Newport, for appellants.

E. E Kelly, of Newport, for appellee.

CLAY C.

Plaintiffs Sadie O'Gara and her husband, M. J. O'Gara, brought this suit against the city of Dayton to recover damages for injuries to their property, alleged to have been caused by the negligent construction of a sewer in the street on which their property fronts. The city's demurrer to the petition was sustained, and the petition dismissed. Plaintiffs appeal.

It appears from the petition that Sadie O'Gara is the owner of a house and lot on Terrace avenue, a public street of the city of Dayton. By ordinance duly adopted the city council ordered the construction of a sewer along Terrace avenue and in front of Mrs. O'Gara's property. The ordinance provided that all work done in the construction of the sewer should be subject to the inspection, approval, and direction of the street and improvement committee of the board of council and the civil engineer of the city. Upon the adoption of the ordinance the city entered into a contract with Edward Mauget, doing business as the Dayton Plumbing Company, to do the work in accordance with the ordinance and the plans and specifications adopted by the council. It is charged, in substance, that the contractor, in carrying out the contract with gross negligence and carelessness dug a deep and wide trench in Terrace avenue in front of Mrs. O'Gara's property, and permitted said trench to remain open, unfilled, and unprotected for an unnecessary and dangerous length of time, thereby causing the ground between the trench and plaintiff's house to slip and slide into the trench and from under the foundation of said house, and further causing the foundation to give way, the front part of the house to sink, the walls to crack, the roof to leak, and the porch to be pulled loose from its fastenings. It is further alleged that the contractor knew, or by the exercise of ordinary care could have known, that the excavation of the trench in the manner indicated, and permitting it to remain open, unfilled, and unprotected, would cause the ground and foundation to slip and thereby injure plaintiff's property. The petition contains the further allegation that the city, through its street and improvement committee and civil engineer, was guilty of gross negligence in failing to properly inspect and direct the digging of the trench, and also in approving its construction in a negligent manner and in permitting it to remain open, unfilled, and unprotected for an unnecessary and dangerous length of time.

The demurrer was sustained on the ground that the city in constructing the sewer was engaged in the performance of a governmental function, and was not, therefore, liable for injuries resulting from the negligence of its servants.

It may be conceded that it is the established law of this state that a city is not liable for personal injuries caused by the negligence of its servants engaged in the discharge of a governmental function. Twyman v. Frankfort, 117 Ky. 518, 78 S.W. 446, 25 Ky. Law Rep. 1620, 64 L. R. A. 572, 4 Ann. Cas. 622; Kippes v. Louisville, 140 Ky. 423, 131 S.W. 184, 30 L. R. A. (N. S.) 1161; City of Bowling Green v. Rogers, 142 Ky. 559, 134 S.W. 921, 34 L. R. A. (N. S.) 461; Allison v. Cash, 143 Ky. 679, 137 S.W. 245; Smith v. Commissioners of Sewerage, 146 Ky. 562, 143 S.W. 3, 38 L. R. A. (N. S.) 151. This principle, however, has no application to the facts of this case. It is controlled by section 242 of the Constitution, which is as follows:

"Municipal and other corporations, and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by them; which compensation shall be paid before such taking, or paid or secured, at the election of such corporation or individual, before such injury or destruction."

Under this section a city cannot take, injure or destroy the private property of a citizen without making just compensation therefor, and the mere fact that the property is injured while the city is engaged in the performance of a governmental function is wholly immaterial. We have frequently recognized the right of a property holder to recover damages for an injury to his property caused by the negligent maintenance of a sewer, and we are unable to perceive any reasonable ground for distinction between an injury caused by negligent maintenance and an injury caused by the negligent manner in which the sewer is constructed. Toebbe v. City of Covington, 145 Ky. 763, 141 S.W 421; City of Maysville v. Brooks, 145 Ky. 526, 140 S.W. 665; Pickerill v. City of Louisville, 125 Ky. 213, 100 S.W. 873, 30 Ky. Law Rep. 1239; Louisville v. Norris, 111 Ky. 903, 64 S.W. 958, 23 Ky. Law Rep. 1195, 98 Am. St. Rep. 437. Indeed, the authorities generally recognize the rule that the corporation is responsible in a civil action for damages caused by the carelessness and unskillful manner of performing the work. Keithsburg v. Simpson, 70 Ill.App. 467...