Jones v. City of Phoenix

• Decision Date: 17 October 1925
• Docket Number: Civil 2363
• Citation: 29 Ariz. 181,239 P. 1030
• Parties: OSCAR JONES, Appellant, v. CITY OF PHOENIX, Appellee
• Court: Arizona Supreme Court

239 P. 1030

29 Ariz. 181

OSCAR JONES, Appellant, v. CITY OF PHOENIX, Appellee

Civil No. 2363

Supreme Court of Arizona

October 17, 1925

APPEAL from a judgment of the Superior Court of the County of Maricopa. F. C. Struckmeyer, Judge. Affirmed.

Mr. C H. Young and Mr. John W. Ray, for Appellant.

Mr. W L. Barnum, City Attorney, for Appellee.

OPINION

LOCKWOOD, J.

This is an action for personal injuries. The allegations of the complaint are in substance as follows: Oscar Jones hereinafter called plaintiff, was employed by the city of Phoenix, a municipal corporation, hereinafter called defendant, in loading and unloading an autotruck which was used in the collection of garbage by defendant. While the truck was hauling garbage to the city dump the driver, who was a fellow-servant of plaintiff, lost control of the truck on account of its being run at an excessive rate of speed, and the further reason that the brakes and steering-gear thereof were, to the knowledge of defendant, defective. It became apparent to plaintiff and the other workmen who were, in the discharge of their duties, riding on the truck that it was about to run into a deep canal and their lives would be greatly endangered. They therefore jumped from the truck in an effort to save themselves, and as a result plaintiff was seriously injured, to his claimed damage in the sum of ten thousand dollars.

A general demurrer was filed, and also a special demurrer, on the ground that it appeared the defendant was operating the truck in the exercise of a governmental function. The same objection was raised by the answer. After due consideration the demurrer was sustained, and, plaintiff electing to stand on his complaint, judgment was rendered for defendant. From the order and judgment plaintiff appeals.

It is apparent that, had defendant been a private individual or corporation, a good cause of action in negligence was stated by the complaint. There is, therefore, but one question for us to determine, and that is whether or not a municipal corporation in Arizona is liable for its negligence when occurring in the collection of garbage.

It is, of course, settled in this jurisdiction that the state itself, by reason of its sovereignty, is immune from prosecution in the courts and from liability to respond in damages for negligence, except in those cases where it has expressly waived immunity or affirmed liability by constitutional or legislative enactment. State v. Sharp, 21 Ariz. 424, 189 P. 631.

Now a municipal corporation is "a legal institution formed by charter from sovereign power . . . for the purpose and with the authority of subordinate self-government and improvement and local administration of affairs of state" (28 Cyc. 117), or "an agency of the state to discharge some of the functions of government" (People v. Coler, 166 N.Y. 1, 82 Am. St. Rep. 605, 52 L.R.A. 814, 59 N.E. 716. It is more, however, than a mere instrument of government, and, as is said in Kaufman v. City of Tallahassee, 84 Fla. 634, 30 A.L.R. 471, 94 So. 697:

"A municipality is organized within certain limits of territory for local advantage and convenience of the people in the particular locality. While it may be a public agency of the state in some of its activities, it is possessed of local franchises and rights which pertain to it as a legal personality or entity for its quasi private (as distinguished from public) corporate advantage."

The courts have, therefore, from an early time held that, when acting in its governmental capacity, it had the exemptions of the sovereignty, but while for its quasi- private benefit it was subject to the liabilities of an individual. This rule is of such almost universal acceptance in the jurisdictions which have adopted the theory of the exemption of the state that we accept it as the undoubted law of Arizona. The authorities are so united on this point that no extensive citations are necessary. 28 C.J. 1527, 1528, and note.

When however, we come to the application of the rule, we find the utmost confusion as to where and how the line of demarcation should be drawn. We therefore consider the cases involving negligence occurring in work like that in which plaintiff in this case was engaged, viz., the sanitary service of the city. Almost without exception these hold that such work is governmental in its nature, and that the municipality is not liable. Condict v. Jersey City, 46 N.J.L. 157; Scibilia v. City of Philadelphia, 279 Pa. 549, 32 A.L.R. 981, 124 A. 273; Kuehn v. Milwaukee, 92 Wis. 263, 65 N.W. 1030; Behrmann v. City of St. Louis, 273 Mo. 578, 201 S.W. 547; City of Louisville v. Carter, 142 Ky. 443, 32 L.R.A. (N.S.) 637, 134 S.W. 468; Kippes v. Louisville, 140 Ky. 423, 30...