Lowe v. Storozyszyn

• Decision Date: 21 February 1938
• Docket Number: 26700.
• Parties: LOWE et al. v. STOROZYSZYN.
• Court: Oklahoma Supreme Court

83 P.2d 170

183 Okla. 471, 1938 OK 112

LOWE et al. v. STOROZYSZYN.

No. 26700.

Supreme Court of Oklahoma

February 21, 1938

Rehearing Denied Oct. 11, 1938.

Syllabus by the Court.

1. The individual members of the Board of County Commissioners are not personally liable for damages for injuries caused by the negligence of a subordinate employee in the performance of his duties in the inspection and repair of bridges even when funds are on hand sufficient to keep said bridges in good repair, unless they negligently and willfully retain an unfit or improper person as such employee or negligently or willfully fail to require such inspector to conform to prescribed regulations or where they so carelessly or negligently oversee, conduct, or carry on the business of their office as to furnish the opportunity for default, or where they have directed, authorized, or co-operated in the wrong.

2. County officers, exercising ordinary care in selection of subordinate employees, whose reliability they have no reason to question, properly instructing them and exercising ordinary care to see that they properly perform their duties are not liable under the rule of respondeat superior for their negligence in detail of work intrusted to them, they being employees of the county, and not of such officers.

Appeal from District Court, Oklahoma County; G. H. Giddings, Judge.

Action by Peter Storozyszyn against Fred D. Lowe and others, as County Commissioners of Oklahoma County, and the sureties on their bonds, for personal injuries and loss of services of two minor children as result of accident occurring because of disrepair of bridge. From a judgment in favor of the plaintiff, the defendants appeal.

Judgment reversed and cause remanded.

RILEY and PHELPS, JJ., dissenting.

I. L Harris, Ted R. Elliott, Maurice M. Thomas, and Thurman & Thurman, all of Oklahoma City, for plaintiffs in error.

O. J Roberts, and S.E. Freeman, both of Oklahoma City, for defendant in error.

OSBORN Chief Justice.

This action was commenced in the district court of Oklahoma county by Peter Storozyszyn, hereinafter referred to as plaintiff, against Fred D. Lowe, Frank McCall, and J. V. Dobbs, hereinafter referred to as defendants, wherein plaintiff sought damages for personal injuries and for the loss of services of his two minor children, alleged to have been sustained as a result of negligence on the part of defendants in failing to perform certain duties enjoined upon them as County Commissioners of Oklahoma County. The sureties on the bonds of the defendants were subsequently made additional defendants to the action.

Issues were joined and the cause tried to a jury. A verdict was returned in favor of plaintiff, and defendants have appealed.

Plaintiff alleged that on April 7, 1934, he was crossing a certain bridge which had been built across the North Canadian river near Harrah, Okl., in a wagon drawn by a team of mules, and that his two minor children were riding in the wagon with him; that on account of the negligence of defendants in failing to repair the bridge the mules which plaintiff was driving became frightened and backed the wagon through the guard rail and off said bridge, thereby precipitating plaintiff and the two minor children into the river; that the plaintiff was seriously injured and the two minor children were drowned. Plaintiff alleged that at all times prior to the date of April 7, 1934, defendants had at their command and disposal ample funds for the repair of the bridge.

The theory upon which this action was tried and upon which plaintiff seeks to sustain his recovery in this court is stated in the brief as follows: "The duty to repair county bridges, with a span of more than twenty feet, on township roads is a ministerial duty devolving upon the office of county commissioners, and where funds are available to repair such a bridge and the county commissioners neglect to make such repairs and injury results from such negligence, the individual county commissioners, as public officers, are personally liable in damages for such injury."

Section 10148, O.S.1931, 69 Okl.St.Ann. § 322, in part provides: "The Board of County Commissioners shall build and maintain all bridges and culverts on the State Road System and all bridges on township roads with a span of more than twenty feet."

Plaintiff relies upon the case of Mott v. Hull, 51 Okl. 602, 152 P. 92, L.R.A.1916B, 1184, and the case of Strong v. Day, 61 Okl. 166, 160 P. 722, 724, L.R.A.1917B, 369, second appeal, Id., 73 Okl. 291, 176 P. 401. The former case was an action for damages against certain township officers for injuries arising from negligence in the construction of a culvert. It was specifically pointed out in that case that the defendants assisted in and gave personal supervision to the work, and the alleged acts of negligence were committed by said officers who were made defendants in the action. In the latter case, which was reviewed by this court after a demurrer to the petition had been sustained by the trial court, it is pointed out that said officers "wantonly and negligently" committed the acts relied upon as a basis of negligence. Therein in discussing the case the court used the following language: "The word 'negligently' is used herein advisedly, and we are not to be taken as holding that every failure to repair a bridge constitutes a negligent failure of duty or raises a presumption of negligence upon the part of the commissioners."

It is apparent that the conclusion in said case is correct but that the syllabus is broader than the question under consideration therein.

We think the case at bar is governed by the decision of this court in the case of Consolidated School District v. Wright, 128 Okl. 193, 261 P. 953, 56 A. L.R. 152, in which case an exhaustive review of all of the extant authorities at that time is made, and the above authorities relied upon by plaintiff are alluded to. Therein was involved the liability of the School District and of the individual members of the board for damages arising by reason of alleged negligence of the officers, agents, and employees of said district in the control and operation of a motortruck in the transportation of plaintiff to school.

In the instant case plaintiff has not charged defendants with the commission of specific acts of negligence or of misfeasance, but relies wholly on the nonfeasance of said officers to establish liability. It was shown that there were possibly 2,000 bridges and culverts in Oklahoma County; that two of the defendants had never inspected the bridge in question; that the third member had inspected it several months prior to plaintiff's injury; that a multitude of other duties were imposed upon defendants by law; that, in order to discharge the duty of inspection and maintenance of bridges and culverts imposed upon them, defendants had employed one Clyde Erwin as bridge superintendent who was charged with the specific duty of such inspection; that when said bridge superintendent found it necessary to make repairs on bridges he made a report to the county engineer and was authorized to proceed to make the necessary repairs under the direction and supervision of the county engineer without further specific authority from the Board of County Commissioners. No contention is made that Clyde Erwin is not a qualified and competent bridge inspector and there is no allegation of lack of diligence on the part of Clyde Erwin other than as alleged against the County Commissioners.

In the case of Longstreet v. Mecosta County, 228 Mich. 542, 200 N.W. 248, 249, it is said:

"In 2 Cooley on torts (3rd Ed.) 756, the rule is thus announced:

'The rule of official responsibility, then, appears to be this: That if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual, injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages.'

In McConnell v. Dewey, 5 Neb. 385, it was held (quoting from the syllabus):

'The duties of a supervisor of public roads are of a general public nature, and he acts for the public at large, and therefore an action, at the common law, will not lie against him by an individual for an injury occasioned to his person or property, by reason of a defect in a public road or bridge.'

In Robertson v. Monroe, 79 N.H. 336, 109 A. 495, it was said by Chief Justice Parsons, speaking for the court:

'It is, however, generally, though not universally, held that at common law the officers upon whom is imposed the performance of the duty of highway maintenance are not answerable to individuals for default in such performance. * * * As the same duty when imposed upon public officers remains governmental in its nature, owed to the public and not to individuals, it would seem to plainly follow that the officers upon whom the duty of maintenance was imposed would not be liable to an individual for default in the performance of their public duty.'

The Supreme Court of Idaho, in the case of Youmans v. Thornton, 31 Idaho 10, 168 P. 1141, following the earlier holding in Worden v. Witt, 4 Idaho 404, 39 P. 1114, 95 Am.St.Rep. 70, held (we quote the syllabus):

'1. The duties of county commissioners and road overseers are prescribed by statute, and are governmental functions.

2. These officers are responsible to the state and county for the performance of their official duties, but beyond this their liability cannot be extended.

3. County...