Mathewes v. Port Utilities Commission

• Decision Date: 22 May 1929
• Citation: 32 F.2d 913
• Parties: MATHEWES v. PORT UTILITIES COMMISSION OF CHARLESTON, S. C. et al.
• Court: U.S. District Court — District of South Carolina

32 F.2d 913 (1929)

MATHEWES v. PORT UTILITIES COMMISSION OF CHARLESTON, S. C. et al.

District Court, E. D. South Carolina.

May 22, 1929.

James Allan, F. W. Aley, and M. L. McCrae, all of Charleston, S. C., for plaintiff.

Huger, Wilbur, Miller & Mouzon and Lionel K. Legge, all of Charleston, S. C., for defendants.

ERNEST F. COCHRAN, District Judge.

The plaintiff's action is based on the Federal Employers' Liability Act (U. S. Code, tit. 45, § 51 45 USCA § 51). Both defendants have demurred on the ground that the action is in tort and that, being municipal corporations, they are not liable for the torts of their agents. The city council of Charleston (sued as the city of Charleston) demurs also on the ground that the acts complained of were those of the port utilities commission, an independent agency over which the city has no control.

The plaintiff brought the action for the benefit of the widow and children of John R. Mathewes, deceased. It sets forth, in substance, that the port utilities commission of Charleston is an administrative board for the operation of the terminal utilities of the city of Charleston, including a railroad engaged in interstate commerce; that the deceased was a conductor on one of the freight trains for carrying interstate commerce and within the terms of the act of Congress and came to his death through the negligence of the defendants while engaged in the operation of shifting freight cars, some loaded with interstate freight. It further alleges that the city of Charleston is made a defendant because the port utilities commission is but an agent of the city for the transaction of the business of operating its port and terminal utilities, including the railroad referred to.

The contention of both defendants is that they are municipal corporations created by the laws of South Carolina, and that under the decisions of the Supreme Court of that state they are not liable for the torts of their officers or agents, and that the federal courts are bound by those decisions. It is also contended that the Federal Employers Liability Act (45 USCA §§ 51-59), does not apply to such municipal corporations and is not to be construed as imposing upon them a liability when they are immune from liability under state law. It is insisted that the distinction which has been drawn in other jurisdictions between the liability of a municipal corporation for the torts of its officers when engaged in other than governmental functions, and their nonliability when engaged in governmental functions, does not obtain in South Carolina.

The powers of the defendants in reference to the port and terminal utilities of the city are contained in sections 4756-4762, inclusive, of the Civil Code of South Carolina of 1922, vol. III. It will not be necessary to set forth these sections in full, nor to discuss their provisions in detail. It is sufficient to say that under them the city is given the power to acquire lands, water, and riparian rights, wharves, buildings, rights of way, and any other property for the purpose and with the right of establishing, constructing, developing, improving, maintaining, and operating the port and terminal utilities of the city in aid of commerce and for the public use and benefit of the city and its citizens. For the purpose of exercising the power and authority vested in the city under these provisions, the port utilities commission was created and vested with full power and authority in the name of the City and on its behalf to carry out the intent and purpose of the provisions of the law. It is also provided that the commission may sue and be sued in any of the courts of the state. Pursuant to these provisions, the city through the port utilities commission operates the railroad upon which the deceased came to his death while engaged in interstate commerce.

It is undoubtedly the rule in South Carolina that a municipal corporation is not liable in tort for the negligence of its agents or employees in the absence of a statute making it liable. Dunn v. Barnwell, 43 S. C. 398, 21 S. E. 315, 49 Am. St. Rep. 843; Hiott v. Walterboro, 127 S. C. 251, 119 S. E. 869.

Moreover, the Supreme Court of South Carolina has rejected the distinction between those torts which are committed by municipalities in the exercise of their public and governmental functions, and those committed in the conduct of the business authorized by law for the advantage of the municipality, but distinct from its public or governmental functions; and has decided that a municipality is not liable in tort for the negligence of its agents, even when engaged in a business of a private nature and not strictly governmental. Irvine v. Town of Greenwood, 89 S. C. 511, 72 S. E. 228, 36 L. R. A. (N. S.) 363.

It has been held by the Supreme Court of the United States that the liability of a municipal corporation and the extent and character of the powers which they may possess are to be determined in the federal courts, according to the settled decisions of the higher courts of the state. Detroit v. Osborne, 135 U. S. 492, 499, 10 S. Ct. 1012, 34 L. Ed. 260; Claiborne County v. Brooks, 111 U. S. 400, 410, 4 S. Ct. 489, 28 L. Ed. 470.

It may be conceded that the defendants in this case, according to the state decisions, are not liable, in the absence of statute, for the torts of their agents, and that I am bound by those decisions.

But those decisions are not determinative of the question here presented. The question here presented is whether Congress has the power to make a...