Hoggard v. City Of Richmond.*

• Decision Date: 09 January 1939
• Citation: 200 S.E. 610
• Court: Virginia Supreme Court
• Parties: HOGGARD. v. CITY OF RICHMOND.*

200 S.E. 610

HOGGARD.

v.CITY OF RICHMOND.^*

Supreme Court of Appeals of Virginia.

Jan. 9, 1939.

EGGLESTON, J., CAMPBELL, C. J., and HOLT, J., dissenting.

Error to Circuit Court of City of Richmond; Julien Gunn, 'Judge.

Notice of motion for judgment by Viola Hoggard against the City of Richmond to recover $5,000 allegedly due for personal injuries. To review a judgment sustaining defendant's demurrer to the motion, plaintiff brings error.

Reversed and remanded.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

M. Haley Shelton and Thomas I. Talley, both of Richmond, for plaintiff in error.

Horace H. Edwards and John P. McGuire, Jr., both of Richmond, for defendant in error.

HUDGINS, Justice.

This is an action to recover $5,000, alleged to be due plaintiff for injuries sustained when her left hand struck a barbed-wire fence while bathing in Shield's Lake, a. swimming pool owned and operated by the city of Richmond. In the first count of the notice of motion, defendant is charged with non-feasance--that is, negligence in maintaining the resort. In the second count, defendant is charged with misfeasance in erecting a barbed-wire fence above' and under the waters of the lake, thereby creating a dangerous place to which plaintiff and other inhabitants of the city were invited. The trial court sustained the city's demurrer to the motion, on the ground that the city "in maintaining and operating the bathing and swimming resort, known as Shield's Lake, was engaged in the exercise of a governmental function."

The question of plaintiff's contributory negligence is negatived in her notice of motion. Hence the single question presented is whether the municipality is liable for negligence in the maintenance of a bathing resort, or negligence in erecting an unsafe and dangerous instrumentality at a place designated for the use of bathers and swimmers.

The general law, as interpreted by the courts in all but two states (South Carolina and Florida), is that a municipality is clothed with two-fold functions; one governmental, and the other private or proprietary. In the performance of a governmental function, the municipality acts as an age, ncy of the state to enable it to better govern that portion of its people residing within its corporate limits. To this end there is delegated to, or imposed upon a municipality, by the charter of its creation, powers and duties to be performed exclusively for the public. In the exercise of these governmental powers a municipal corporation is held to be exempt from liability for its failure to exercise them, and for the exercise of them in a negligent or improper manner. This immunity is based on the theory that the sovereign can not be sued without its consent, and that a designated agency of the sovereign is likewise immune.

There is granted to a municipal corporation, in its corporate and proprietary character, privileges and powers to be exercised for its private advantage. In the performance of these duties the general public may derive a common benefit, but they are granted and assumed primarily for the benefit of the corporation. For an injury resulting from negligence in their exercise or performance, the municipality is liable in a civil action for damages in the same manner as an individual or private corporation. For Virginia and West Virginia cases, see 7 Michie's Digest 571 and 2 Va.L.Reg., N.S., 36. See, also, 43 C.J., p. 920, et seq., and 19 R.C.L., p. 1109.

While this distinction is generally recognized, the difficulty arises in the application of the rule to various municipal activities.

This court has held that a municipal corporation acts in its governmental capacity in operating a hospital (City of Richmond v. Long's Adm'rs, 17 Grat., 375, 58 Va. 375, 94 Am.Dec. 461); in regulating the use of sidewalks and streets (Terry v. City of Richmond, 94 Va. 537, 27 S.E. 429, 38 L.R.A. 834; Jones v. City of Williamsburg, 97 Va. 722, 34 S.E. 883, 47 L.R.A. 294); in maintaining a jail (Franklin v. Richlands, 161 Va. 156, 170 S.E. 718); and in maintaining a police force (Burch v. Hardwicke, 30 Grat. 24, 71 Va. 24, 33, 34, 32 Am.Rep. 640; Lambert v. Barrett, 115 Va. 136, 140, 78 S.E. 586, Ann.Cas.l914D, 1226; City of Winchester v. Redmond, 93 Va. 711, 716, 25 S.E. 1001, 57 Am.St.Rep. 822).

In Maia's Adm'r v. Eastern State Hospital, 97 Va. 507, 34 S.E. 617, 618, 47 L.R.A. 577, it was held that the Eastern State Hospital was a public corporation, governed and controlled by the state, and acted exclusively as an agency of the state for the protection of society, and for the promotion of the best interests of the unfortunate citizens, hence it was not liable in damages for personal injuries inflicted on one of its inmates in consequence of the negligence or misconduct of the persons administering the powers, or their agents or employees.

Judge Buchanan, in delivering the opinion, referred to City of Richmond v. Long's Adm'rs, supra, and said [page 618]: "In that case the distinction was drawn between powers and duties which aregranted to or imposed upon a public body as an agency of government, to~be exercised and performed exclusively for public, governmental purposes, and those powers and privileges which are exercised by the corporation or body for its own private advantage, and are for public purposes in no other sense than that the public derives a common benefit from a proper discharge of the duties arising from the grant."

In.the case of Ashbury v. Norfolk, 152 Va. 278, 147 S.E. 223, it was held that a municipality, in removing garbage, acted in a governmental capacity. Judge Prentis, speaking for the court, said [page 224]: "There is some conflict in the cases, but the weight of authority quite certainly is to the effect that the removal of garbage by a municipality is a governmental function, which is designed primarily to promote public health and comfort, and hence that the municipality is not liable therefor in tort when the negligence which is charged occurred in the performance of that particular function, and no nuisance is thereby created."

In the City of Lynchburg v. Peters, 156 Va. 40, 157 S.E. 769, Justice Holt said [page 772]: "The city, in the establishment of this park and playground, was acting in its governmental capacity and committed no legal wrong. It does not contend that it has the right to convert this lawful undertaking into a center of disorder, and so it is not necessary for us to follow the doctrine of municipal immunity in governmental undertakings, further."

The following are a few of the cases in which this court held that a municipal corporation, while engaged in the construction, repair, improvement or maintenance of its streets and sidewalks, in the operation of a wharf, in changing the grade of its street level, and in controlling surface water, acts in a private or proprietary capacity, and is liable to the individual for injuries resulting from the negligence of its officers or servants employed in the activities enumerated. City of Petersburg v. Applegarth's Adm'r, 28 Grat. 321, 69 Va. 321, 26 Am.Rep. 357; Noble v. City of Richmond, 31 Grat. 271, 72 Va. 271, 280, 31 Am.Rep. 726; Smith v. City Council of Alexandria, 33 Grat. 208, 74 Va. 208, 36 Am.Rep. 788; Orme and wife v. City of Richmond, 79 Va. 86; Stearns v. City of Richmond, 88 Va 992, 14 S.E. 847, 29 Am.St.Rep. 758; Jones' Adm'r v. City of Richmond, 118 Va. 612, 88 S.E. 82; City of Radford v. Calhoun, 165 Va. 24, 181 S.E. 345, 100 A.L.R. 1378; Richmond Bridge Corp. v. Priddy, 167 Va. 114, 187 S.E. 518; Tyler v. Richmond, 168 Va. 308, 191 S.E. 625.

The same rule applies to the activity of a municipality in conducting public utilities, such as water, sewerage systems, gas, light, etc. Chalkley v. City of Richmond, 88 Va. 402, 14 S.E. 339, 29 Am.St.Rep. 730; Richmond v. Warehouse Corp., 148 Va. 60, 138 S.E. 503, 54 A.L.R. 1485, and City of Richmond v. James, 170 Va. 553, 197 S.E. 416, 116 A.L.R. 967.

This general line of demarcation between immunity and liability of a municipal corporation for torts has been followed with more or less consistency in this jurisdiction for more than a century. Judge Prentis, in the case of Ashbury v. Norfolk, supra, realized the difficulty in applying the general rule to specific facts, and deciding whether the specific activity was governmental or proprietary. He quoted Chief Justice Rugg, in Bolster v. City of Lawrence, 225 Mass. 387, 390, 114 N.E. 722, L.R.A.1917B, 1285, as follows: "The difficulty lies not in the statement of the governing principles of law, but in their application to particular facts. The underlying test is whether the act is for the common good of all without the element of special corporate benefit, or pecuniary profit. If it is, there is no liability, if it is not, there may be liability. That it may be undertaken voluntarily and not under compulsion of statute is not of consequence."

Near the conclusion of the opinion, Judge Prentis said: "In a modern instance (Scibilia v. Philadelphia, supra [279 Pa. 549, 124 A. 273, 32 A.L.R. 981]), it has been suggested that, as local governments are so constantly assuming or being vested with new duties, the distinction between purely public functions which are certainly within the police power, and those private business enterprises which are not, is becoming increasingly difficult to maintain. This may be true, but, if so, it is doubtless because of our bad habit of counting cases instead of adhering to fundamental rules."

Notwithstanding the reference to fundamental rules, the decision of this court in that case was in direct conflict with the following statement of Judge Cardwell in Portsmouth v. Lee, 112 Va. 419, 71 S.E. 630, 632: "It is to be borne in mind that it is as much the duty of a municipal corporation to take due and proper precautions for the health and welfare of its citizens as it is to keep its streets and all parts of them in...