Mardis v. City of Des Moines

• Decision Date: 16 November 1948
• Docket Number: 47268.
• Citation: 34 N.W.2d 620,240 Iowa 105
• Parties: MARDIS v. CITY OF DES MOINES.
• Court: Iowa Supreme Court

34 N.W.2d 620

240 Iowa 105

MARDIS v. CITY OF DES MOINES.

No. 47268.

Supreme Court of Iowa

November 16, 1948

Rehearing Denied Jan. 14, 1949.

Parker, Mook & Mannheimer, of Des Moines, for appellant.

Frank B. Hallagan, Corporation Counsel, S. L. Harvey, City Solicitor, Frank D. Bianco, Asst. City Solicitor and Hextell & Beving, all of Des Moines, for appellee.

HALE Justice.

For the purpose of this appeal, the facts are not in dispute. This is an action at law brought against the city of Des Moines and its employees, Francis Mastin and Harry Wilson, by Howard C Mardis to recover damages suffered as a result of an accident involving a truck owned by the city of Des Moines and a car in which Mardis was riding. The chief issue is whether a municipal corporation is liable to one injured through the negligent driving of a city-owned truck by city employees who were carting away and dumping rubbish swept from the streets or whether the doctrine of governmental immunity interposes to relieve the corporation from liability for such torts.

The plaintiff's petition setting out the cause of action was met by the city by motion to dismiss, which was sustained by the court which, in its opinion, stated as its conclusion that plaintiff's petition showed that the truck was being operated in carrying out a governmental function, and though its servants may have been negligent, yet no civil liability can be cast upon the city.

Plaintiff argues that the function of street cleaning is part of the statutory authority and obligation imposed upon cities and towns by section 389.12 of the Code of 1946, which vests municipalities with the care and control of their streets and directs their streets be kept open and in repair, and free from nuisances; that no reasonable distinction can be drawn between the city's liability for negligent failure to maintain its streets in the condition prescribed by statute and its liability for the negligent conduct of its employees while engaged in that work; and that, irrespective of the statute in question, a city is liable for the negligence of its employees in the operation of a truck while engaged in street cleaning because that function is proprietary and not governmental.

The defendant, City of Des Moines, argues that municipal corporations are not liable for injuries resulting from negligent acts or omissions of employees engaged in performing a governmental function of the municipal corporation; that the test as to whether or not an activity is a governmental function is whether it is for the general public benefit or provides for the safety and protection of the property of the general public rather than being in the nature of a business undertaking for a corporate benefit or in the corporate interest; that cleaning or flushing the streets is a governmental function and a municipal corporation is not liable in damages for injury resulting from negligent acts or omissions of its employees so engaged, and further urges that cleaning, flushing or sprinkling the streets, as a public health and comfort measure, is the exercise of the police power of the city and hence a governmental function; and that the care and maintenance of the city streets is a governmental function and a municipal corporation is not liable in damages for injuries resulting from negligent acts or omissions of its employees in such care and maintenance.

The injury involved in this action occurred as the plaintiff was riding in a car belonging to his son. They were driving in a northwesterly direction on Beaver avenue and were struck at the intersection of Beaver avenue and Witmer Parkway by a truck owned by the city of Des Moines, operated by its employees Mastin and Wilson. Defendant drivers backed out of Witmer Parkway in an endeavor to cross Beaver avenue and struck the car in which plaintiff was riding. The employees were engaged in moving piles of street sweepings from the streets and dumping such debris in a ravine on the west side of Beaver avenue opposite the entrance ot Witmer Parkway. Beaver avenue at this intersection is a 'through street.' By reason of this collision plaintiff sustained injury.

This is an intermediate appeal duly authorized by this court and involves only one question: Is defendant City, which is a municipal corporation, liable for injuries caused by the negligence of its employees while thus engaged in cleaning the streets?

The Code of 1946, in relation to the duties of cities and towns as to the streets and public grounds, provides in section 389.12:

'Duty to supervise. They shall have the care, supervision, and control of all public highways, streets, avenues, alleys, public squares, and commons within the city, and shall cause the same to be kept open and in repair and free from nuisances.' This statute has been in operation for many years.

The plaintiff argues that the court erred in holding that section 389.12 of the code imposes upon the municipality no duty of care in the conduct of street cleaning for breach of which the city is liable, and argues that the municipality is liable for the negligence of its servants in carrying out its statutory duty to supervise streets and keep them open, in repair and free from nuisances. This is the sole point in issue. The cases cited by plaintiff, however, refer particularly to the condition of the streets, as in Cox v. City of Des Moines, 231 Iowa 880, 2 N.W.2d 261, which is a case involving liability of negligent maintenance of a park; Humphrey v. City of Des Moines, 236 Iowa 800, 20 N.W.2d 25, which involved injury on a street alleged to be in an unsafe condition for travel; Shinnick v. City of Marshalltown, 137 Iowa 72, 114 N.W. 542, the cause of action in which case was an obstruction placed in the street; Prowell v. City of Waterloo, 144 Iowa 689, 123 N.W. 346, which action involved a construction of a parkway not properly guarded. All these cases and many others related to some action of the city itself, of course through its agents or employees, in which the issue was whether or not the city had failed in its statutory duty.

This court has held in a series of cases that for the failure to maintain the streets in good condition or to permit them to be in a dangerous or hazardous condition for travel a municipal corporation is liable in damages. The plaintiff has always been permitted to recover where liability has properly been shown, but the question we have here does not apply to the failure of the city to perform its statutory duty. In this respect the liability of a municipal corporation varies from the ancient common law rule of nonliability for negligence in performance of a governmental duty, so that the failure to perform, as in the Iowa cases cited by plaintiff, is based on such cases holding the municipal corporation in damages as in Hazard v. City of Council Bluffs, 87 Iowa 51, 53 N.W. 1083, and other cases cited in that connection by the plaintiff.

This court has never passed directly upon the question of the liability of the city for the negligence of its employees while engaged in the performance of the duty imposed upon the city of cleaning the streets, but that the city is liable for failure of maintenance or for negligent construction may be true and is generally so held. But the further extension of the rule that liability of the city may exist while in the performance of such duty has not been directly so recognized in this state. The contrary is true. Probably the largest number of authorities hold to the contrary. The general holding of the courts of this country is thus stated in 38 Am.Jur. (Municipal Corporation) 311, § 614.

'The courts differ as to whether the disposition or removal of garbage and refuse constitutes a governmental function within the rule that in the performance of a governmental function a municipality is not liable for the negligence of its officers and employees, but the weight of authority is to the effect that it is a public or governmental function, and that the municipality is not liable for the negligence of the persons employed therein. This rule applies also to the erection and maintenance of an incinerator by a municipality. If properly constructed and maintained, the municipality will not be held civilly liable to individuals for injuries resulting therefrom. In such a case it can make no difference that the injury is to real estate rather than to the person of an individual, if it is merely the result of an act of a person in the employ of the municipality. In some jurisdictions, it is considered that the removal of garbage or refuse is a corporate function to which the benefit to the public health is a mere incident, and that a municipality is liable for the torts of its employees engaged in such work.' Citing a large number of authorities in support of the majority rule, and various authorities holding to the contrary.

In a previous section, 572, page 261, the rule is stated, in part:

'Subject to certain exceptions hereinafter noted, the rule almost universally recognized is that in the absence of statutory provision, there can be no recovery against a municipal corporation for injuries occasioned by its negligence or nonfeasance in the exercise of functions essentially governmental in character. In the exercise of such functions the municipal corporation is acting for the general public as well as the inhabitants of its territory, and represents in such capacity the sovereignty of the state. No liability attaches to it at common law, either for nonuse or misuse of such power or for the acts or omissions on the part of its officers or agents through whom such functions are performed, or of the servants employed by agencies carrying out governmental functions of the...