Jackson v. City of Paris

• Decision Date: 14 October 1949
• Citation: 228 S.W.2d 1015,33 Tenn.App. 55
• Parties: JACKSON v. CITY OF PARIS.
• Court: Tennessee Court of Appeals

228 S.W.2d 1015

33 Tenn.App. 55

JACKSON v. CITY OF PARIS.

Court of Appeals of Tennessee.

October 14, 1949.

Certiorari Denied by Supreme Court Feb. 10, 1950.

Dudley Porter, of Paris, for plaintiff-in-error.

Van Dyke & Dunlap, of Paris, for defendant-in-error.

SWEPSTON Judge.

This is a suit against the City of Paris and two individuals for damages for personal injuries. The only defendant involved in the present appeal is the City of Paris.

The cause was tried by the Court after a jury trial had been waived, who upon motion of defendant, dismissed the plaintiff's suit on the ground that no negligence of the City was shown. Plaintiff has appealed and assigned this action of the Court as error.

The accident and injury occurred in the following manner.

A strand of 12 gauge soft steel wire accidentally became attached to a truck belonging to one Diggs while said truck was returning from Kentucky Lake to Paris. The strand was about a quarter mile long. It was detached from the truck at the instance of Diggs after the truck and wire were within the City about 11:00 A.M. and lay in the street until plaintiff undertook to remove it about 5:00 P.M.

Someone called the Chief of Police later on and informed him that the wire was in the street. He telephoned the office of the Superintendent of City Streets who was out, and asked plaintiff to attend to getting the wire removed from the street.

Plaintiff's job was to repair and maintain automotive vehicles of the City and he had never worked on the streets; when the Superintendent was out plaintiff was in charge of the City garage. In response to the request or order of the Chief of Police he obtained the assistance of the son of the Superintendent who was a laborer on street jobs and they proceeded to remove the wire under plaintiff's directions.

They first pushed the full length of wire from the street into the ditch; they then went to one end of the wire where plaintiff standing in the ditch, began pulling the wire and winding it on a spool while his helper undertook to flag traffic. As the wire was pulled it flopped about from the ditch to the street. An automobile came along, got entangled in the wire a short distance from the plaintiff and as the wire was pulled by the moving car, it caught around plaintiff's ankle dragged him thirty feet and against a culvert, cutting his leg to the bone and causing a severe injury and partial disability of the leg and foot.

Plaintiff testified that the Chief of Police told him to remove the wire and the Superintendent had already told him to do anything the Chief told him to do. That it was Saturday afternoon and he was at the garage only because of a rush job, otherwise he would not have been on duty; that he knew nothing about street work and had never done any. He did know that when wire is pulled it will flop or jump about.

The declaration charges only two acts of negligence which are set out in plaintiff's brief as follows:

'1. When the Chief of Police of the City of Paris was informed that a wire extended along a city street for a distance of one-fourth of a mile, he should have ordered an experienced street worker to remove the wire from the street. He should not have ordered the plaintiff, who was an automobile mechanic without experience in street work, to enter upon a dangerous service outside of his regular employment without warning advice and instructions from the Chief of Police as to the danger involved. The plaintiff and the Chief of Police testified that the plaintiff received no warning advice and instructions from the Chief of Police as to the danger involved.'

'2. While the plaintiff was winding up the wire the Chief of Police should have stationed a traffic policeman at each end of the wire to halt traffic. If this had been done there would have been no accident.'

The City plead the general issue, contributory negligence, assumption of the risk, and that the Chief of Police acting as such, was exercising a governmental function and the City would not be liable for his neglect or negligence in the performance of his official duties.

It will be observed at the outset of our discussion that the only negligence charged against the City consists of the alleged acts and failures to act of the Chief of Police.

The argument in behalf of plaintiff is that it is the duty of the City in its private or corporate capacity to construct, maintain and keep free of unlawful obstructions, the City streets.

That under Code Section 10871 it is a misdemeanor for one to obstruct streets, highways, etc.; that under Code Section 3626 prescribing the duties of the Chief of Police under City manager charters, such as has the City of Paris, it is the duty of the Chief of Police to prevent violations of law and city ordinances; that in the instant case the Chief of Police in ordering the plaintiff to remove the wire was acting as the agent of the City in the performance of the City's duty to remove the obstruction; that he was, therefore, performing a private or corporate duty and that for his negligence the City would be liable under respondeat superior.

The City's argument is that a police officer's duties are only those provided by law and are purely governmental; that he is not the agent of the City; that, therefore, the City is not liable for his commissions or omissions.

The general rule is stated in Davis v. Knoxville, 90 Tenn. 599, 18 S.W. 254: 'Municipal corporations, such as counties, cities, and towns, are arms of the state, to whom has been delegated, for the purpose of local government, a portion of the sovereign power of the state. Such corporations can only act through agents, and, as they are but arms of sovereignty, the principle of respondeat superior does not apply. But when such corporation exists by virtue of a charter, general or special, limiting its powers and prescribing duties, it implicitly contracts to carry out the prescribed purposes of its creation; and if its agents or servants are guilty of negligence while in the discharge of corporate duties which are for the peculiar benefit of the corporation, in its local or special interest, an action will lie against the municipality, the maxim of respondeat superior applying. Mayor v. Lasser, 9 Humph. 757 ; Mayor v. Brown, 9 Heisk. 6 [56 Tenn. 6, 24 Am.Rep. 289; Mayor, etc., of City of] Memphis v. Kimbrough, 12 Heisk. 133 .'

Under the cases cited and many later cases the rule is established that the construction and maintenance of streets in a safe condition is a private or corporate function.

In the last case cited, Mayor, etc., of City of Memphis v. Kimbrough, the City was held liable for the negligence of the wharfmaster on the basis that the keeping of the wharf was entrusted to him by ordinance of the City, that it might well have employed any other servant for that purpose, that he was not acting as a public officer, executing the laws of the State, but an agent or servant of the City acting in a private capacity of maintaining a wharf.

A police officer is not, however, in the usual contemplation of law an agent or servant.

In Cornett v. Chattanooga, 165 Tenn. 563, 56 S.W.2d 742, 743, the basis of the decision excluding policemen from the...