Lee v. Davidson County

• Decision Date: 09 February 1929
• Citation: 13 S.W.2d 328,158 Tenn. 313
• Parties: LEE v. DAVIDSON COUNTY et al.
• Court: Tennessee Supreme Court

13 S.W.2d 328

158 Tenn. 313

LEE v. DAVIDSON COUNTY et al.

Supreme Court of Tennessee.

February 9, 1929

Appeal from Circuit Court, Davidson County; A. G. Rutherford, Judge.

Suit by E. T. Lee against Davidson County and others. From judgment of dismissal, plaintiff appeals. Affirmed.

M. S Ross and W. S. Noble, both of Nashville, for appellant.

Horace Osment, of Nashville, for appellees.

CHAMBLISS J.

This appeal is from a judgment sustaining a demurrer to a declaration and dismissing the suit. The declaration alleged that Lee suffered injuries "by reason of the neglectful acts and conduct of the defendants," the county of Davidson and its agents named, in that, the defendants, while repairing a highway, made such use of a tank, or vat, and motortrucks and certain attachments, in the heating and distribution on the roadway of tar products, as to cloud the highway with smoke and obstruct free passage by vehicles; and that plaintiff, approaching in his automobile, was given no warning of the dangerous condition thus created, and being suddenly enveloped in said smoke, conceiving himself to be in peril, sprang from his car upon and into the heated tar and was injured. The declaration charges that, on the facts thus substantially stated, the defendants created a nuisance; the evident purpose of the learned pleader being by this charge which appears to us to be a deduction or conclusion of the pleader, to escape the well-established rule of nonliability of a county for injuries caused by negligence in the construction and maintenance of public highways.

This general rule of nonliability for damages while engaged in the exercise of a governmental function is, of course, too well settled to require discussion. It has been reaffirmed in our recent cases. Vance v. Shelby County, 152 Tenn. 141 273 S.W. 557; Carothers v. Shelby County, 148 Tenn. 185, 253 S.W. 708; Johnson v. Hamilton County, 156 Tenn. 298, 1 S.W.2d 528. And even in Chandler v. Davidson County, 142 Tenn. 265, 218 S.W. 222, relied on for appellant, wherein liability for creating and maintaining a nuisance was adjudged, it was said that "building the pike," and equally repairing it, "is one of the corporate functions of defendant, and is authorized by statute."

The facts of the present case do not bring it within the exceptional nuisance doctrine. Analysis of the declaration discloses no more than negligent conduct incident to and in...