Hazlett v. Bd. of Com'Rs of Muskogee Cnty.

• Decision Date: 22 May 1934
• Docket Number: Case Number: 21973
• Citation: 168 Okla. 290,1934 OK 315,32 P.2d 940
• Parties: HAZLETT v. BOARD OF COM'RS of MUSKOGEE COUNTY et al.
• Court: Oklahoma Supreme Court

1934 OK 315

32 P.2d 940

168 Okla. 290

HAZLETT v. BOARD OF COM'RS of MUSKOGEE COUNTY et al.

Case Number: 21973

Supreme Court of Oklahoma

Decided: May 22, 1934

Syllabus

¶0 1. Counties--Nonliability of County for Torts of Officers and Employees.

A county in this, state, in the absence of an express statute creating a liability therefor, is not liable in a civil action for damages for the neglect of its officers or those they are obliged to employ, or in failing to perform, or improperly or negligently performing their duties as such officers or employees.

2. Same--Liability not imposed on County by Statutory or Constitutional Provisions.

Neither section 5085 nor section 5091, C. O. S. 1921. nor section 6, art. 2, of the Constitution, expressly makes a county liable in an action ex delicto for the negligence of the officers or employees of a county.

3. Same--County Commissioners not Individually Responsible for Negligence of Employees.

County commissioners are not individually responsible for the negligence of those whom they are obliged to employ in the discharge of their duties in the execution of public works, such employees are not their servants, and the rule of respondeat superior does not apply so as to charge them with responsibility for the negligent acts of such employees. Berg v. Willibey, 138 Okla. 110, 280 P. 456.

4. Officers--Individual Responsibility for Negligence in Choice of or Superintendence of Employees.

Public officers are individually responsible for their own acts in the abuse or transgression of their authority, or for willful and wanton negligence in the choice of their employees, or in the superintendence of such employees in the discharge of their allotted duties.

Appeal from District Court, Muskogee County; W. J. Crump, Judge.

Action by Mrs. J. I. Hazlett against the Board of Commissioners of Muskogee County and the members thereof individually, and another. Demurrers by the board and by the members sustained, and plaintiff appeals. Reversed and remanded.

Leahy & Brewster and Kelly Brown, for plaintiff in error.

Phil K. Oldham, County Attorney, Earle Boyd Pierce, Asst. County Attorney, Benj. & Richard Martin, C. A. Summers, and Bower Broaddus, for defendants in error.

RILEY, C. J.

¶1 Plaintiff in error commenced this action against the board of county commissioners of Muskogee county, C. R. Hinson, Irvin Blanchard, and A. T. Ingrain, the members thereof, as individuals, and one Matt Peterson, an employee of the board of county commissioners, to recover damages for personal injuries.

¶2 The petition, after alleging the corporate character of the county, etc., alleged in substance that on or about October 6, 1928, plaintiff in going from her home in Muskogee to a nearby market, while going south across Muskogee avenue, observed a truck which was being driven by defendant Peter son. It was approaching from the east along said avenue at a high rate of speed; that she proceeded on and across the street and onto the sidewalk about eight feet from the curb, at which point she was struck by said truck, which had left the highway and been driven up over the curbing across the parking and onto the sidewalk, whereby she was knocked to the ground with great force, causing great bodily injury; that immediately upon striking plaintiff the truck stopped and emitted a large amount of boiling water, severely scalding plaintiff so as to cause large portions of skin and flesh to tall off her body, as a result of which she was confined to a hospital for a period of about one month and to her home for about five months thereafter, during all of which time she suffered great pain and as a result of which she was permanently injured and disfigured. She alleged negligence on the part of defendants as causing her injuries as follows:

"(A) That said defendants were driving and operating said truck at a high and excessive rate of speed, greater and faster than that permitted by the ordinances of the city of Muskogee, Okla., in driving a car upon the street above mentioned.

"(B) That the defendants were negligent in operating said truck in that they drove the same on the south side of the street in going west and on the left side of the highway running along said street and that, further, said defendants drove said truck off said highway and upon the parking of the sidewalk where said plaintiff was struck.

"(C) That defendants were further negligent in that they were operating said truck without adequate brakes or stopping facilities, and that the defendants and each of them knew that said car was not equipped for driving on said highway at the rate of speed it was being driven; and that defendants were further negligent in operating said truck at an excessive rate of speed knowing that said truck was old, worn, and out of condition, and was heating to such an extent that the cooling system caused the water in the radiator to boil over when the truck stopped, as happened when said truck struck this plaintiff."

¶3 And:

"Your petitioner shows that at the time of said accident Matt Peterson was employed by the defendant board of county commissioners and was acting within the scope of his employment. That at the time of said accident, the defendants, board of commissioners and the said Matt Peterson, were not engaged in any of the governmental functions and that said defendant Matt Peterson was not at the time directed upon any mission of a governmental nature. But that said defendant board of county commissioners were engaged and acting as a private corporation, and the said defendant Matt Peterson was engaged in special duties by and with the consent and at the direction of the defendant board of county commissioners.

"Plaintiff further states that the defendant board of county commissioners, as a board and individually, and the defendant Matt Peterson well knew or could have known by the exercise of ordinary and reasonable care of the unsafe and defective condition of said truck; that it was old and dilapidated; that the cooling system was defective and that the defendant board of county commissioners knew of the careless and reckless manner in which the said Matt Peterson operated said truck, and knowing of his reckless manner, continued him in their employment, using said defective machinery as above set forth and placing said truck in his possession for the performances of the special services of the defendant board, knowing that the plaintiff and all other persons using the highway of the county and streets of the city were being placed in danger, by the using of such machinery and by the operation of such careless, negligent, and reckless driving.

"V. This plaintiff further shows that there was a fund appropriated by the excise board of Muskogee county, Okla., for the purpose of repairing the machinery owned and operated by the county and that there was on hand in said fund at the time of said accident and for a long period of time prior thereto sufficient funds to repair said truck and put the same in a usable and safe condition. That said defendants C. R. Hinson, Irvin Blanchard, and A. T. Ingrain are personally liable herein for the injury caused this plaintiff by reason of the fact that they willfully, carelessly, and negligently neglected the duties of their office in that, knowing of the defective equipment being used by the said employee, Matt Peterson, and knowing further of his reputation as a careless and reckless driver, and knowing further that there was funds available for the repair of said truck, they continued said truck in use in the hands of the said Matt Peterson in the performance of the special duties aforesaid, and placing a dangerous instrumentality in his hands at the peril of the public and particularly this plaintiff."

¶4 The defendant board of county commissioners, by the county attorney, filed its separate demurrer, and each of the defendant members of the board of county commissioners, as individuals, by other counsel, filed separate demurrers. These separate demurrers were all sustained, and plaintiff declining to plead further, the action was dismissed as against said defendants, and plaintiff appeals.

¶5 Plaintiff contends that the court erred in sustaining the separate demurrer of the county, and that the court erred in sustaining the separate demurrers of each of the members of the board as individuals. She states in her brief that the question of liability of a county and the members of the board as individuals has been before this court on numerous occasions and that plaintiff is not unmindful of the many decisions of this court exempting a county from liability in such actions.

¶6 It has been uniformly held that a county is not liable for damages caused by the negligence of the board of county commissioners, its members, or one employed by the board in carrying on the work of the county.

¶7 It is suggested that the facts alleged in plaintiff's petition are different from the facts in any of the cases which have been before this court, and our attention is specifically called to the provisions of sections 5085 and 5091, C. O. S. 1921, which provide:

"Every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his rights."

"Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has willfully or by want of ordinary care brought the injury upon himself."

¶8 It is suggested that the provisions of these sections have not heretofore been considered in such cases. The provision of section 6, art. 2, of the Constitution of Oklahoma, which provides. "The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property or reputation; and right and justice...