Hayes v. The Town Of Cedar Grove

• Decision Date: 30 May 1944
• Docket Number: (CC 688)
• Citation: 126 W.Va. 828
• Parties: Wilburn Hayes v. The Town of Cedar Grove, etc.
• Court: West Virginia Supreme Court

126 W.Va. 828

Wilburn Hayes

v.The Town of Cedar Grove, etc.

(CC 688)

Supreme Court of Appeals of West Virginia.

Submitted April 18, 1944.

Decided May 30, 1944.

1. Municipal Corporations

Under the police power of the State, the Legislature has power to provide for the protection of the safety, health, morals, and general welfare of the public, and may delegate such powers to municipalities created by it.

2. Municipal Corporations

Activities on the part of a municipality, under legislative delegation to it of the police power of the State, are presumed to be governmental; but this presumption is re- butted in a particular case where such activity is shown to be proprietary.

3. Municipal Corporations

Acts of a municipality for the protection of the health of its inhabitants, under authority delegated to it by the Legislature, and where no profit accrues therefrom to the municipality, are acts performed in carrying out a governmental function.

4. Municipal Corporations

The removal by a municipality of refuse, trash, garbage and other deleterious matter from its streets and alleys, or from private property adjacent thereto, where no profit accrues to the municipality therefrom, is the exercise of a governmental function.

5. Municipal Corporations

A municipal corporation, organized under the laws of this State, is not liable for the negligence of its officers, agents, or servants, occurring while they are engaged in acts directed to be performed by the governing authority of the municipality, in carrying out a purely governmental function.

Certified from Circuit Court, Kanawha County.

Action by Wilburn Hayes against the Town of Cedar Grove, etc., for personal injuries sustained by plaintiff through alleged negligence of defendant's employees. A demurrer to the declaration was sustained in the trial court, and its action thereon certified to the Supreme Court of Appeals.

Ruling affirmed.

Horace S. Meldahl, for plaintiff. Bibby & Good, for defendant.

Fox, Judge:

This is a law action, pending in the Circuit Court of Kanawha County, in which Wilburn Hayes is plaintiff, and The Town of Cedar Grove, a municipal corporation, created and organized under the laws of the State of West Virginia, is defendant, in which plaintiff seeks to recover damages for personal injuries sustained by him while in the employ of the defendant, and alleged to have resulted from the negligence of his fellow-employees, and failure to provide and to keep in good repair proper equipment for the work being performed. A demurrer to the declaration was sustained in the court below, and its action on said demurrer certified to this Court.

The demurrer goes to the single question of the alleged immunity of the defendant from liability for the acts complained of, it being contended that the declaration on its face shows that the work being performed by the defendant, and out of which plaintiff's injuries arose, was in the exercise of a governmental function. No question is raised as to the sufficiency of the allegations of the declaration in respect to the acts of negligence alleged, and other matters relied upon for recovery. That part of the declaration to which the demurrer is directed, reads as follows:

"... that heretofore, to wit, on or about the day of May, 1943, the said defendant as such municipal corporation was vested with certain powers, duties and privileges, some of which involved the exercise of obligatory governmental functions, and some of which were optional ministerial acts, and that among the optional ministerial acts which said defendant was entitled to engage in was the collection of trash within the corporate limits of said town from the premises of private citizens and residents, and hauling away and disposing of same, and that after said defendant had previously authorized and arranged for a certain individual or individuals to collect and haul away trash and garbage from, the private premises of such town residents and collecting from them authorized fees therefor, and without abrogating or doing away with said arrangements, the said defendant, acting by and through its duly elected and qualified officers and

agents, on or about the______day of May, 1943, and

shortly prior to a general municipal election, announced publicly and to certain people in particular that it would collect from private premises within the corporate limits of said town the trash of those residents who might place it in containers for such purpose pursuant to said invitation, and haul away and dispose of same without any charge or expense to such residents, and that among the several persons employed by said defendant for the purpose of collecting, hauling away and disposing of said trash was this plaintiff, Wilburn Hayes, which plaintiff, among other things had the work of shoveling the trash, which was brought and dumped by other of said employees onto the bed of the truck furnished by said defendant for said purpose to the front part of the bed of said truck;..."

The sole ground of demurrer is set forth in the language following:

"The declaration shows on its face that the alleged acts of negligence of the Defendant which caused the injury of the Plaintiff were committed by the Defendant in the course of the exercise of a governmental function, and the Defendant is consequently immune from liability therefor."

The certification is in the language of the demurrer quoted above. Therefore, there is presented the clear-cut question of whether or not defendant is entitled to avail itself, as a complete defense to the action against it, of the doctrine of immunity against liability, when engaged in a purely governmental function as distinguished from proprietary or ministerial activity. The authorities, in discussing the question, refer to the powers of a municipality as governmental, judicial or discretionary on the one hand; and as proprietary, corporate or ministerial on the other. In this opinion, the two classifications of power will be referred to as "governmental" and "proprietary".

If the defense to the plaintiff's action, raised by defendant's demurrer to the declaration, is sustained, said de- fense must, in the final analysis, arise out of the common law doctrine of the immunity of the sovereign state and its agencies from civil suits or actions growing out of governmental activities. The immunity as to the State is made absolute, except as to garnishment or attachment proceedings, by Section 35, Article VI of our Constitution. Stewart v. State Road Commissioner, 117 W. Va. 352, 185 S. E. 567. But the immunity existed at common law. The principle upon which it exists is tersely stated in Shearman & Redfield On the Law of Negligence, 6th Ed., Vol. 2, Section 249, from which we quote:

"The State is a corporation, and as such may make contracts and may suffer and commit wrongs, and may enforce its rights and redress its injuries by civil action. But as a sovereign power, it cannot be compelled by the process of courts of its own creation, much less by that of other courts, to defend itself from prosecution. Such immunity is placed upon the ground that the general welfare requires that the State should not be deprived or dispossessed of its property without its consent; not on the maxim of the English law that the king can do no wrong, a maxim which has no existence in American law. Any liability therefore, on the part of the State for the negligent acts or omissions of its officers or agents, must be one voluntarily assumed by constitutional legislative enactment, or it does not exist. In a word, the doctrine of Respondeat superior does not apply to the State."

See also 43 C. J. (Municipal Corporations), Sections 173, 174, 179, 6 McQuillin on Municipal Corporations, 5th Ed., 1643; Hill v. Boston, 122 Mass. 344; City of Richmond v. Long, 17 Gratt. 375; Jones v. City of Williamson, 97 Va. 722, 34 S. E. 883; Franklin v. Town of Richlands, 161 Va. 156, 170 S. E. 718; Hoggard v. Richmond, 172 Va. 145, 200 S. E. 610. The case of Hill v. Boston, supra, was a case where a child had been injured on account of the unsafe condition of a staircase in a school house provided by a city. The opinion was written by then Chief Justice Gray, afterwards an Associate Justice of the Supreme Court of the United States, and contains a full and complete resume of the English and American authorities on the subject discussed, and furnishes the background for many subsequent holdings on that question. The opinion is prefaced by the following statement:

"We had supposed it to be well settled in this Commonwealth that no private action, unless authorized by express statute, can be maintained against a city for the neglect of a public duty imposed upon it by law for the benefit of the public, and from the performance of which the corporation receives no profit or advantage. But, it having been suggested at the argument that the recent opinions of the Supreme Court of the United States tended to a different result, the respect due to that high court, even in matters in which we are not bound by its decisions, has led us to reexamine the foundations upon which our law rests, and, in stating our conclusion, to make fuller reference to the authorities than might under other circumstances have been thought expedient."

The principle stated in the authorities above cited has long been followed in this State. One of the earlier cases was that of Mendel & Co. v. City of Wheeling, 28 W. Va. 233, in which Judge Johnson reviews the authorities on the question. In Brown's Admr. v. Town of Guyandotte, 34 W. Va. 299, 12 S. E. 707, it was held, "As to the powers and functions of a town of a public governmental character, it is not liable for damages caused by the wrongful acts or negligence of its officers or agents therein." This was a case where plaintiff's decedent had lost his life in the burning of a jail, and where such burning was attributed to the alleged wrongful acts or...