Looney v. City of Sioux City

• Decision Date: 11 February 1914
• Citation: 163 Iowa 604,145 N.W. 287
• Parties: LOONEY v. CITY OF SIOUX CITY.
• Court: Iowa Supreme Court

163 Iowa 604

145 N.W. 287

LOONEY

v.CITY OF SIOUX CITY.

Supreme Court of Iowa.

Feb. 11, 1914.

Appeal from District Court, Woodbury County; George Jepson, Judge.

This is an action wherein the plaintiff seeks to recover damages from the defendant city for negligence in failing to have one Matt Carr, a policeman of said city, under bond on the 1st day of May, 1912, when plaintiff was shot and injured by the said police officer. The demurrer to the petition was sustained. Plaintiff appeals. Affirmed.Andrew G. Lehr, of Sioux City, for appellant.

Robert B. Pike and F. H. Schmidt, both of Sioux City, for appellee.

PRESTON, J.

The plaintiff states in his petition that while under arrest of one Matt Carr, a policeman of the defendant city, he was shot and severely injured by the said Carr, and that he recovered in the district court of Woodbury county a judgment against the said Carr of $4,000 for his injuries so sustained, and that he tried to enforce said judgment against said Carr, but that Carr had no property subject to execution, either at the time of the injury or any time thereafter, and that the city by practice and custom has fixed the amount of the bond required of its policemen at $2,000, and that the plaintiff is therefore damaged in the amount of $2,000 owing to the negligence of the defendant city in not having said Carr under bond at the time of said injury.

Carr was appointed policeman on the 22d day of April, 1912, and up to May 1, 1912, when he shot plaintiff, had not given bond. A copy of a part of the ordinance on this subject is attached to the petition, under the title, “Bonds of City Officers,” and is as follows: “Sec. 2. The superintendents of the different departments are hereby authorized to require bonds from employés in their respective departments, not mentioned in section 1 hereof, and to fix the amount of said bonds, whenever they shall deem such action necessary. Such bonds shall comply as to sureties with other bonds herein required and shall be approved by the city council.”

The grounds of the demurrer are: “First. That the said city was acting in a governmental capacity, as the agent of the state, in enforcing the police regulations in said city, and for any wrongs committed by the agents or officers of said city in relation thereto it is not liable either directly or indirectly. Second. That the requirements that a bond be furnished by police officers was a requirement imposed upon the officers of the city acting in a governmental capacity, and that for the failure of any municipal officer to require such bond is the failure to exercise or perform a governmental duty, and not the breach of a municipal obligation for which a city may be liable.”

The only authorities cited by appellant are: Gray v. Griffin, 111 Ga. 361, 36 S. E. 792, 51 L. R. A. 131;Gibson v. Huntington, 38 W. Va. 177, 18 S. E. 447, 22 L. R. A. 561, 45 Am. St. Rep. 853; Laws of Iowa, 34 G. A., c. 54, § 2; Code, §§ 1182, 1183. Gray's Case was an action in which plaintiff attempted to hold the defendant city liable for wrongful imprisonment, and it was held that the city was exercising a governmental function and could not be held liable. That is appellee's contention in the case at bar. The Gibson Case was an action brought for the alleged wrongful death of a child, caused by the falling of an embankment, which had been undermined by a person without the knowledge of the city. The city was held not liable, but on the ground that it did not have notice of the defect. In the opinion the court makes some general observations as to the rules by which a city is liable for injuries sustained by the negligent management of its corporate property, and for injuries caused by its negligence in the discharge of, or failure to discharge, such duties as are purely ministerial, and not governmental or discretionary. These rules are conceded by the defendant to be correct statements of the law. Chapter 54, Acts of 34 G. A., has reference to civil service examinations of fire and police officers before a commission, in cities under the commission form of government. It is not alleged in the petition in this case that the defendant city is under such form; but this is, perhaps, not material. The application of this act to this case is not stated by appellant, further than that he concedes the appointment of a policeman to be a governmental act; but, he asserts, that the requiring of a bond of such officer, by some other officer of the city (in this case, under section 2 of the ordinance, the superintendent of the department), is a ministerial act for which the city is liable. Sections 1182 and 1183 of the Code are the requirements as to the officers giving bond. It may be observed here--though it has not been suggested in argument--that section 1185 of the Code provides that the amount of the bond shall be in such a sum as the council, by ordinance, prescribes; while, under the ordinance, this is to be done by the superintendents of the departments. Again, section 1197 provides that it shall be a misdemeanor for an officer of whom a bond is required to act without giving the bond; and that he shall be liable to a fine for an amount not exceeding the amount of the bond required of him.

In this case neither the...