Jackson v. City of Owingsville

• Decision Date: 19 October 1909
• Citation: 121 S.W. 672
• Parties: JACKSON v. CITY OF OWINGSVILLE.
• Court: Kentucky Court of Appeals

121 S.W. 672

JACKSON v. CITY OF OWINGSVILLE.

Court of Appeals of Kentucky.

October 19, 1909

Appeal from Circuit Court, Bath County.

"Not to be officially reported."

Action by James Jackson against the City of Owingsville. From a judgment of dismissal, rendered on sustaining a general demurrer to the petition, plaintiff appeals. Affirmed.

W. S Gudgell and Hazelrigg & Hazelrigg, for appellant.

J. J Nesbit and C. W. Goodpaster, for appellee.

BARKER J.

The petition of appellant states that the appellee is a city of the fifth class, and that appellant was forced, against his will, by the marshal of the city, to break rock on the municipal rock pile, in order to pay off and discharge a fine (euphemistically called in the petition an "old unacknowledged debt"); that while so engaged another person, also in durance vile and engaged in the same occupation, was placed so near appellant that a splinter of the hammer he was using flew off and struck appellant in the eye, wholly destroying his vision therein. To recover damages for this injury this action was instituted, based upon the theory that plaintiff's injury was caused by the negligence of the officers of the city. A general demurrer was filed by the appellees, and sustained by the court. Appellant (plaintiff) refusing to plead further, his petition was dismissed.

The judgment was correct. In enforcing the criminal laws of the state and city, the municipality is the agent of the state and is not responsible for the tortious or negligent acts of its officers while so engaged. Pollock v. City of Louisville, 13 Bush, 221, 26 Am.Rep. 260; Taylor v City of Owensboro, 98 Ky. 271, 32 S.W. 948, 17 Ky. Law Rep. 856, 56 Am.St.Rep. 361; Jones v. City of Corbin, 98 S.W. 1002, 30 Ky. Law Rep. 374; Dudley v. City of Flemingsburg, 115 Ky. 5, 72 S.W. 327, 24 Ky. Law Rep. 1804, 60 L.R.A. 575, 103 Am.St.Rep. 253; Having v. City of Covington, 78 S.W. 431, 25 Ky. Law Rep. 1617; Twyman's Adm'r v. City of Frankfort, 117 Ky. 518, 78 S.W. 446, 25 Ky. Law Rep. 1620, 64 L.R.A. 572; Simons v. Gregory, 120 Ky. 116, 85 S.W. 751, 27 Ky. Law Rep. 509; Ernst v. West Covington, 116 Ky. 850, 76 S.W. 1089, 25 Ky. Law Rep. 1027, 63 L.R.A. 652, 105 Am.St.Rep. 241.

Judgment affirmed.

NOTE TO JACKSON v. CITY OF OWINGSVILLE.

[a] (U. S. 1903) The gathering of refuse and waste by a city, and the establishment, maintenance, and operation of dumping grounds for its ultimate disposal, under the direction of the officers of the city health department, is a duty of local or municipal concern, not performed in the exercise of any governmental function; and hence the city is liable for the negligence of its officers and agents engaged in the performance of such work.--City of Denver v. Porter, 61 C.C.A. 168, 126 F. 288; Denver, U. & P. R. Co. v. Same, Id.

[aa] (U. S. 1901) A municipal corporation is liable in a court of admiralty for a collision caused by the negligence of its servants in charge of a vessel of which it is owner, who were operating the same under the directions of the corporation; and it is immaterial whether the vessel was employed in a municipal service or under orders which were ultra vires, the relation of master and servant being sufficient to render the corporation responsible under the rule of respondent superior.--The Major Reybold (D. C.) 111 F. 414.

[b] (Ala. 1901) Where a bill by a water company against a city avers a discrimination by the city against the complainant, causing it to lose its customers by reason of certain double charges, and the city, through its officers and agents, was able to enforce its unjust regulations, it is not subject to demurrer on the ground that the acts complained of were unlawful and void acts of the officers and agents of the city, for which the city was not responsible, as the city was unable to commit the alleged wrongs, except through its agents and officers.--City of Mobile v. Bienville Water Supply Co., 130 Ala. 379, 30 So. 445.

[bb] (Cal. 1897) The rule of respondeat superior does not apply to render a city liable for injuries caused by the negligence of the city engineer in the performance of a duty imposed upon him by law.--Sievers v. City and County of San Francisco, 115 Cal. 648, 47 P. 687, 56 Am.St.Rep. 153.

[c] (Colo. 1900) A city authorized generally by statute to build a jail, to make rules and regulations for its government, and to appoint keepers, is not liable to a prisoner arrested and confined in such jail on a charge of violating an ordinance for an injury received, while so confined, through the negligence of the keepers; the city acting in a public capacity for the benefit of the general public as well as its own inhabitants.--McAuliffe v. City of Victor, 15 Colo. App. 337, 62 P. 231.

[cc] (Conn. 1898) In an action against a city for damages resulting from a default of its sheriff in permitting the escape before judgment of one arrested under a civil process, and for a failure to return the process, the plaintiff is required to prove the judgment which he could have obtained in the action against the escaped prisoner had the process been returned.--Swan v. City of Bridgeport, 70 Conn. 143, 39 A. 110.

[d] (Ga. 1898) A municipal corporation, while enforcing a valid ordinance requiring citizens and residents of the city to submit to vaccination, is exercising a governmental power, and is not liable to a citizen who may sustain damage on account of impure vaccine matter administered to him by one of the officers or agents of such corporation.--Wyatt v. City of Rome, 105 Ga. 312, 31 S.E. 188, 42 L.R.A. 180, 70 Am.St.Rep. 41.

[dd] (Ga. 1900) Where a person who was arrested without cause by the police officers of a city and confined in the city jail suffered injuries because of the improper construction and unwholesome condition of such jail, he cannot maintain an action against the city for such injuries, since a municipal corporation is not liable for the illegal arrest of a person by its police officers, nor his consequent imprisonment, under Pol. Code, providing that a municipal corporation shall not be liable for torts of policemen engaged in the discharge of their duties.--Gray v. City of Griffin, 111 Ga. 361, 36 S.E. 792, 51 L.R.A. 131.

[e] (Ga. 1900) Under Pol. Code, § 748, providing that a municipal corporation is not liable for an error committed in the exercise of judicial authority, a city is not liable in damages because its mayor required of a person charged with a violation of a city ordinance a larger bond for his appearance than the law authorized, though the failure of such person to give bond, and his consequent confinement, was occasioned by such act of the mayor.--Gray v. City of Griffin, 111 Ga. 361. 36 S.E. 792, 51 L.R.A. 131.

[ee] (Ill. 1896) A municipality is not liable for the acts of negligence of its officers, who are independent of the corporation as to their tenure of office and the manner of discharging their duties.--Backer v. West Chicago Park Com'rs, 66 Ill.App. 507.

[f] (Ill. 1896) The West Chicago park commissioners is a municipal corporation, and, as such, is not liable for damages resulting from the negligence of its officers in giving an employé a vicious and unsafe horse to use.--Backer v. West Chicago Park Com'rs, 66 Ill.App. 507.

[ff] (Ill. 1899) A city is not liable for an assault committed by a special policeman while in the performance of his duties. Judgment (1898) 78 Ill.App. 312, affirmed.--Craig v. City of Charleston, 180 Ill. 154, 54 N.E. 184.

[g] (Ill. 1899) Where the charter of a city empowered the common council to support and maintain schools, to grade and regulate the same, to erect and purchase school buildings, to assess a tax for the same, and to enact such ordinances as may be necessary to carry said powers into effect, it is no defense to an action against said council, for an alleged illegal discrimination against children of African descent, that the acts complained of were done or permitted by a board of education to whom the council had delegated the "power to indicate and determine what schools the pupils of the public schools shall attend."--People v. City of Alton, 179 Ill. 615, 54 N.E. 421.

[gg] (Ind. 1901) Under Horner's Rev. St. 1897, §§ 7060, 7061, giving control of the department of health and charities to three commissioners who shall be practicing physicians and placing in their charge the city hospital and the efficient regulation and management thereof, the board acts for the public, and not as agent of the municipality in its corporate character; and hence a city is not liable to a patient, treated without charge at the city hospital, injured by the alleged unskillful treatment of a physician employed therein.--Williams v. City of Indianapolis, 26 Ind.App. 628, 60 N.E. 367.

[h] (Iowa, 1896) A town is not liable for the acts of its officers, under an illegal ordinance, attempting to enforce the police powers of the town.--Easterly v. Incorporated Town of Irwin, 99 Iowa 694, 68 N.W. 919.

[hh] (Iowa, 1900) While driving along the street of defendant city, plaintiff's horse, being frightened by the employés of defendant's fire department, ran off, injuring plaintiff, who sued to recover for her injuries. Held, that there could be no recovery, as the employés were public officers engaged in a public duty at the time of the accident.--Saunders v. City of Ft. Madison, 111 Iowa 102, 82 N.W. 428.

[hhh] (Iowa, 1906) A municipal corporation is not liable, in the absence of a statute imposing a liability, for the negligence of its officers in executing health regulations adopted for the purpose of preventing the spread of contagious diseases for it, while undertaking such duty, is performing a governmental function.--Beeks v. Dickinson County, 131 Iowa...