Hoggard v. Richmond

• Decision Date: 09 January 1939
• Docket Number: Record No. 2004.
• Citation: 172 Va. 145
• Parties: VIOLA HOGGARD v. CITY OF RICHMOND, VIRGINIA.
• Court: Virginia Supreme Court

Page 145

172 Va. 145

VIOLA HOGGARD v. CITY OF RICHMOND, VIRGINIA.

Record No. 2004.

Supreme Court of Virginia, Richmond.

January 9, 1939.

Present, All the Justices.

1. MUNICIPAL CORPORATIONS — Municipal Torts — Two-Fold Functions of Municipality. — A municipality is clothed with two-fold functions; one governmental, and the other private or proprietary.

2. MUNICIPAL CORPORATIONS — Municipal Torts — Municipality Acts as Agency of State in Performance of Governmental Function. — In the performance of a governmental function, a municipality acts as an agency 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.

3. MUNICIPAL CORPORATIONS — Municipal Torts — Exempt from Liability in Exercise of Governmental Powers. — In the exercise of governmental powers a municipal corporation is 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.

4. MUNICIPAL CORPORATIONS — Municipal Torts — Liable for Negligence in Exercise of Proprietary Powers. — There are 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.

5. MUNICIPAL CORPORATIONS — Municipal Torts — Test to Determine Whether Function Governmental or Proprietary. — The underlying test in determining whether a municipality is functioning in a governmental or ministerial capacity is whether the act is for the common good of all without the element of special corporate benefit, or pecuniary profit.

6. MUNICIPAL CORPORATIONS — Municipal Torts — Operation of Swimming Pool Is Ministerial Act. — The operation of a swimming and bathing pool by a municipality under the provisions of its charter, or the general law, is a ministerial act.

7. MUNICIPAL CORPORATIONS — Municipal Torts — Liability for Wrongful Act Committed in Performance of Ministerial Act. — Where a wrongful act causing injury is committed by the servants of a municipality in the performance of a purely ministerial act, the municipal corporation is liable as any other private corporation, even though it does not derive any pecuniary advantage from such activity.

8. MUNICIPAL CORPORATIONS — Municipal Torts — Liability for Negligence in Maintaining Swimming Pool — Case at Bar. — In the instant case, an action for damages against a municipal corporation, plaintiff charged the city with negligence in maintaining a swimming pool, and with misfeasance in erecting a barbed-wire fence above and under the waters of the pool, 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 notice of motion, on the ground that the city in maintaining the bathing and swimming resort was engaged in the exercise of a governmental function.

Held: That plaintiff's notice of motion stated a cause of action, and that the municipal corporation had a right to offer any and all defenses that a private corporation would have under the same circumstances.

Error to a judgment of the Circuit Court of the city of Richmond. Hon. Julien Gunn, judge presiding.

The opinion states the case.

M. Haley Shelton and Thomas I. Talley, for the plaintiff in error.

Horace H. Edwards and John P. McGuire, Jr., for the defendant in error.

HUDGINS, J., delivered the opinion of the court.

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.

1-3 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 agency 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.

4 There are 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 Virgina 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 Long's Adm'rs, 17 Gratt. (58 Va.) 375, 94 Am.Dec. 461); in regulating the use of sidewalks and streets (Terry City of Richmond, 94 Va. 537, 27 S.E. 429, 38 L.R.A. 834; Jones City of Williamsburg, 97 Va. 722, 34 S.E. 883, 47 L.R.A. 294); in maintaining a jail (Franklin Richlands, 161 Va. 156, 170 S.E. 718); and in maintaining a police force (Burch Hardwicke, 30 Gratt. (71 Va.) 24, 33, 34, 32 Am.Rep. 640; Lambert Barrett, 115 Va. 136, 140, 78 S.E. 586, Ann. Cas. 1914D, 1226; City of Winchester Redmond, 93 Va. 711, 716, 25 S.E. 1001, 57 Am.St.Rep. 822).

In Maia's Adm'r 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 Long's Adm'r, supra, and said page 618: "In that case the distinction was drawn between powers and duties which are granted 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 Norfolk, 152 Va. 278, 147 S.E. 223, 224, it was held that a municipality, in removing garbage, acted in a governmental capacity. Judge Prentis, speaking for the court, said: "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 City of Lynchburg Peters, 156 Va. 40, 157 S.E. 769, 772, Justice Holt said: "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...