Kirksey v. City of Fort Smith

• Decision Date: 01 April 1957
• Docket Number: No. 5-1199,5-1199
• Citation: 300 S.W.2d 257,227 Ark. 630
• Parties: , 66 A.L.R.2d 627 Arma Jean KIRKSEY, Administratrix, Appellant, v. CITY OF FORT SMITH, Appellee.
• Court: Arkansas Supreme Court

Page 257

300 S.W.2d 257

227 Ark. 630, 66 A.L.R.2d 627

Arma Jean KIRKSEY, Administratrix, Appellant, v. CITY OF FORT SMITH, Appellee.

No. 5-1199.

Supreme Court of Arkansas.

April 1, 1957.

Warner, Warner & Ragon, Ft. Smith, for appellant.

Lem C. Bryan, City Atty., Ft. Smith, and Hardin, Barton, Hardin & Garner, Ft. Smith, Special Counsel, for appellee.

Mehaffy, Smith & Williams, Little Rock, and Glenn G. Zimmerman, North Little Rock, amici curiae.

MILLWEE, Justice.

The issue here is whether a municipal corporation is liable for a tort committed in connection with the operation and maintenance of its airport. Essential to such determination is the further question whether the operation and maintenance of a municipal airport is a governmental or proprietary function.

Plaintiff is the widow of Jason Kirksey, deceased, and administratrix of his estate. She brought this action against the defendant, City of Fort Smith, Arkansas, seeking damages for the injury and death of her husband arising out of his employment at the Fort Smith Municipal Airport. The complaint alleges that the airport was acquired under the right of eminent domain with all revenues derived therefrom being used for operation expenses, maintenance, retirement of bonds and improvements of such airport. There are repeated allegations in the form of conclusions of law or fact to the effect that the city operated its airport as 'a proprietary function' or a 'private corporation' and not for a governmental purpose; and that it sold petroleum products to the general public and operated at a net profit with income derived from such sources as office and other space rentals, cafe operation and other activities of an alleged proprietary nature. However the salient factual allegations are that the deceased sustained injuries from an explosion causing his death on account of the negligence of the defendant, and its agents, in ordering him to use certain solvents and in failing to use reasonable care to furnish him with safe tools and place to work.

The city demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. After the matter was taken under advisement and fully briefed the able trial judge rendered a comprehensive and well considered opinion in which he concluded that the operation and maintenance of the municipal airport by the city constituted a governmental and not a proprietary function for which it was not liable to respond in damages to the plaintiff; and that the demurrer should, therefore, be sustained. This appeal is from a judgment dismissing the cause of action after plaintiff declined to plead further.

In reaching the conclusion that the operation and maintenance of the Fort Smith Municipal Airport is a governmental function the trial court reviewed our various statutes dealing with the construction and operation of such installations and the cases from other jurisdictions bearing on the question relied on by each party. After noting the sharp division of authority on the question in other jurisdictions the court concluded that our own cases pointed to non-liability on the part of the city. We quote from the opinion:

'Act 128 of 1953 was passed and referred to by short title as 'Municipal Airports Act,' which appears in Supplement, Ark.Stats. as sections 74-601 to 74-620, inclusive. Section 74-602 provided for the general powers of municipalities in the operation and maintenance of airports and as a part thereof, provided: '* * * including the construction, installation, equipment, maintenance and operation at such airports of buildings and other facilities for the servicing of aircraft or for the comfort and accommodation of air travelers, and the purchase and sale of supplies, goods and commodities as an incident to the operation of its airport properties * * *.'

'Defendant, City of Fort Smith, contends that under Section 74-615, Supplement (Act 128 of 1953), the operation and maintenance of a municipal airport was determined and declared by the Legislature to be a governmental function. The section provides in part: 'the * * * construction, improvement, maintenance * * * operation * * * and the exercise of any other powers herein granted to such municipalities * * * are hereby declared to be public and governmental functions, exercised for a public purpose, and matters of public necessity; and in the case of any municipality are declared to be municipal functions and purposes as well as public and governmental * * *.'

'Section 74-616 exempts the income from operation of airports by a municipality from taxation. Section 74-619 as to interpretation and construction of the Act provides that: 'This Act (§§ 74-601-74-620) shall be so interpreted and construed as to make uniform so far as possible the laws and regulations of this State and other States and of the government of the United States having to do with the subject of municipal airports.' Under the provisions of Act 128 of 1953, Federal aid was made available by grant or loan for construction of airports by municipalities.

'Section 74-615 very clearly provides that the exercise of the powers granted, which include maintenance and operation of airports, constitute public and governmental functions for a public purpose and to be matters of public necessity and that in cases of municipalities are declared to be municipal functions and purposes as well as public and governmental.

'Act 128 of 1953 makes no reference to tort liability, nor does it in direct terms, exempt municipalities from tort liability, other than declaring that in the exercise of the powers granted under the Act, same constitute governmental functions. * * *

'The case of [City of] Little Rock v. Holland, 184 Ark. 381, 42 S.W.2d 383, declared the law to be that: A municipality acting in its proprietary or corporate capacity is liable for injury caused by the negligence or nonfeasance of its officers or agents; but, when acting in its governmental capacity, it is not liable for such negligence or nonfeasance. Factually, the appellee was an electric lineman, employed by the city, was sent out alone to remove a pole from the city's line. He climbed the pole, which broke and he fell sustaining injuries. He alleged negligence upon the part of his superior by reason of failure to inspect pole or to warn him of its dangerous condition, and in failing to furnish him with a safe place to work. A demurrer was filed to the complaint, which was overruled. The appellate court on appeal, reversed the case and ordered its dismissal, holding that the operation of a municipal power plant was a governmental function. It cited with approval the case of Granger v. Pulaski County, 26 Ark. 37, in which the court held that counties are quasi-corporations and that they possessed no power and incur no obligations except conferred or imposed by statute, by the party injured, for the negligence of their officers, unless authorized by statute. The court also stating that any distinction between liability of counties and cities had been lost sight of by the court in later decisions. The court stated that the maintenance and operation of waterworks, sewers, buildings and rapair of streets were necessary governmental functions, and 'it is difficult to perceive why the same rule should not apply to the facts in this case. We hold that it does. * * *'

'In the case of Patterson v. City of Little Rock, 202 Ark. 189 [149 S.W.2d 562], plaintiff, a minor child, sustained injuries through the alleged negligence of the employees of the Municipal Waterworks in leaving open and uncovered a water meter box. She sued the City of Little Rock, the Little Rock Municipal Water Works and its Commissioners for damages. A demurrer to the complaint was sustained.

'The demurrer was sustained and affirmed on appeal to the Supreme Court, the court discussed Section 1 of Act 131 of 1933 which authorized any city to purchase or construct a waterworks system, holding that the Act conferred on municipalities the power to purchase or construct a waterworks system but did not require them to do so. If the power was exercised as conferred, then the operation of the same was to be performed as set out therein. They held that the city was therefore engaged in a governmental function in the operation of the water works by its board of commissioners and could not be sued. The court reiterated its former...