Leckliter v. City of Des Moines

• Decision Date: 18 November 1930
• Docket Number: No. 40377.,40377.
• Citation: Leckliter v. City of Des Moines, 211 Iowa 251, 233 N.W. 58 (Iowa 1930)
• Parties: LECKLITER v. CITY OF DES MOINES ET AL.
• Court: Iowa Supreme Court

211 Iowa 251

233 N.W. 58

LECKLITER

v.CITY OF DES MOINES ET AL.

No. 40377.

Supreme Court of Iowa.

Nov. 18, 1930.

Appeal from District Court, Polk County; O. S. Franklin, Judge.

Action at law to recover damages for personal injuries. The jury returned a verdict for plaintiff. The defendants appeal. The facts appear in the opinion.

Affirmed on the appeal of the defendant Crawford; reversed on the appeal of the City.Chas. Hutchinson, F. T. Van Liew, and Chauncey A. Weaver, all of Des Moines, for appellants.

Stipe, Davidson & Davidson, of Clarinda, and Clark, Byers & Brunk, of Des Moines, for appellee.

GRIMM, J.

It is alleged by the plaintiff that on the evening of the 19th of December, 1928, she received severe personal injuries while riding as a passenger in a Ford coupé automobile, which, at the time of the accident was going north on Fourth street in the city of Des Moines, at a reasonable rate of speed, and on the right side of the street; that the said automobile was struck on its right side by a police patrol wagon which was coming from the east on Court avenue, and which vehicle was owned by the city of Des Moines and was being driven by the defendant Glen Crawford, an employee of the city. It is claimed that the police patrol was driven at a high, negligent, and dangerous rate of speed. It is claimed that the driver did not have said motor vehicle under proper control, and that he failed to sound a bell or give any warning of approach. It is alleged that the motor vehicle was driven in violation of the city ordinances regulating traffic and speed, and that the said wagon was then being used in a ministerial and corporate capacity by the city of Des Moines.

The city answered with a general denial, and, in addition, affirmatively pleaded that the motor vehicle owned by the city of Des Moines was being used for the purpose of transferring police officers from police headquarters in East Des Moines to patrol beats in West Des Moines at or about the hour of change from the afternoon to evening shift, as has been the custom for a long period of years, and that the operation of such motor vehicle in the manner described was in the exercise of a governmental function, and, for injuries from or incidental thereto, there can be no liability in tort or recovery in damages against the defendant city under the laws of this state. The defendant city also pleaded certain ordinances outlining the preferential rights of public vehicles at street intersections and police and fire departments when engaged in the discharge of public duty. The city also affirmatively alleged contributory negligence on the part of the plaintiff, and that she was guilty of a violation of the city ordinance in relation to motor traffic.

The defendant Glen Crawford pleaded that he was a police officer at the time of the accident, and that his acts were governmental, for which there was no liability or damages on his part, that the plaintiff was violating the city speed and traffic regulations and was guilty of contributory negligence.

Briefly stated, the facts are as follows: On the evening of December 19, 1928, the plaintiff, Helen Leckliter, accompanied by Mark J. Sluss, left their home in the city of Des Moines to go to the Rock Island Station to meet plaintiff's brother, Horace Leckliter, who was expected on the 7:15 evening train coming from the east. The train arrived about an hour late. After the arrival of the guest the three young people walked from the station to where the car was parked on Fourth street, just north of the station. They started for the Leckliter home. Sluss was at the wheel, Horace Leckliter was sitting on the right side, and the plaintiff sat between them. The car was started north on Fourth street. One block north of the Rock Island Station, Fourth street intersects with Court avenue, which latter is a thoroughfare starting from the east side of the Polk county courthouse, on the west side of the river, and continuing east across the river to the east side municipal building and police station, and thence on towards the State Fair Grounds.

At the intersection of Fourth street and Court avenue, the Ford coupé in which the plaintiff and her companions were riding was struck by a Des Moines police patrol wagon driven by the defendant police officer Glen Crawford, and in which wagon there were, at the time, five police patrolmen in uniform being taken, after they had reported for duty and answered roll call, from the police station to their west side beats. It appears that it has been a custom of long standing for the city to transport its police officers in this manner. The police officer, Glen Crawford, was driving under specific orders from the then chief of police. The police car in use on that night had been in departmental service for many years, and, so far as the record shows, had never been used for any other purpose. It was plainly marked on the sides in large letters “Police Patrol.”

There is no dispute about the fact that the plaintiff suffered injuries, nor is there any dispute that the police patrol was traveling on the north side of Court avenue just before the accident. At the southeast corner of the intersection of Fourth street and Court avenue there is, instead of a building, a large space occupied by a filling station, the building of which is well set back, leaving only one or two small filling station pumps at the corner of the lot. The west wall of the filling station building is 23 feet easterly of the east property line of Fourth street, and 17.7 feet south of the south property line of Court avenue. This afforded the driver of the Ford coupé a clear view of Court avenue, as the Ford was being driven north in Fourth street, for a long distance east in Court avenue before the Ford reached the south curb line of Court avenue. It appears that Court avenue is 67 feet wide from curb to curb, and Fourth street is 42 feet wide.

There is a dispute about the speed at which the police patrol was being driven. The police officers all testified that the police patrol gong was sounded almost constantly from the start at the police station on the east side of the river until the accident. Three disinterested witnesses also testified on the same subject and to the same effect. The plaintiff's associates and others testified they did not hear the gong sound. The plaintiff herself testified that she saw the police car coming from the east when it was about three-quarters of a block east of Fourth street, and that she called the attention of Sluss, the driver of the car, to that fact. To this warning he answered “Yes.” It is claimed the Ford car was going at not to exceed twelve miles an hour and was under control, yet no attempt was made to stop the Ford and permit the police patrol to pursue its course.

At the close of all the evidence the defendants moved for a directed verdict. These motions were overruled and exceptions were properly taken. The jury returned a verdict for plaintiff against both defendants, and, from the judgment rendered thereon, this appeal has been taken.

[1][2][3][4][5] I. It is the contention of the appellants that, without dispute, the evidence shows that the police patrol automobile involved in the accident was under the operation and control of police officers when on duty and while the city was engaged in the exercise of a governmental function, and, for injuries thus arising, there is no liability in tort or for recovering damages against a municipal corporation, under the laws of this state. The rule is firmly established in this and other jurisdictions that, where a municipal corporation is performing a duty imposed upon it as the agent of the state in the exercise of strictly governmental functions, there is no liability to private action on account of injuries resulting from the negligent acts of officers or agents thereunder, unless the liability is definitely fixed by statute. As was said in Harris v. City of Des Moines, 202 Iowa, 53, 209 N. W. 454, 456, 46 A. L. R. 1429: “A governmental duty is one involving the exercise of governmental power, and is assumed for the exclusive benefit of the public. A sovereign act of government cannot be submitted to the judgment of the courts, since government is not the subject of private law. It rests upon the municipality to determine whether it will exercise its governmental powers, and, if it does, such functions do not create civil causes of action. Upon this theory a city is not liable for the acts of its officers in attempting to enforce police regulations.”

These rules are so widely recognized and firmly established that we need cite no authorities in support thereof. The difficulties arise mostly out of the application of these rules to the particular case in hand. Assuming, but not deciding, that the driver of the police patrol was negligent before and at the time of accident, the question is whether, under the undisputed facts in this case, there is any liability on behalf of the city. If the accident grew out of the exercise of its governmental functions by the city, then the city is not liable.

It is undisputed that the driver of the police patrol on that occasion was an officer of the police force of Des Moines and under civil service. He was in his uniform and on duty. The time had come for the change from the day to the evening shift for police patrolmen in the city of Des Moines. The officers, whose duty it was to patrol the beats in the evening, had reported for duty at the city police station on the east side of the river. They were in uniform and had answered to roll call and were under orders of the chief of police. It had been the custom for a long time, in order to facilitate the work and enhance the efficiency of the police department, to transfer these officers, by this police patrol wagon, to their respective territories over which the various patrolmen traveled. Under personal orders issued by...