Mayor & Aldermen of Memphis v. Kimbrough

• Decision Date: 30 April 1873
• Citation: 59 Tenn. 133
• Parties: The Mayor and Aldermen of the City of Memphis v. John C. Kimbrough.
• Court: Tennessee Supreme Court

59 Tenn. 133

The Mayor and Aldermen of the City of Memphis

v.John C. Kimbrough.

Supreme Court of Tennessee.

April Term, 1873.

FROM SHELBY.

From the Second Circuit Court of Shelby County, January Term, 1872. IRVING HALSEY, J.

WM. M. RANDOLPH for Plaintiff.

H. CLAY KING, HUMES & POSTON, and H. C. YOUNG, for Defendant.

MCFARLAND, J., delivered the opinion of the Court.

This action was brought by Kimbrough against the Mayor and Aldermen of the City of Memphis, to recover the damages alleged to have been sustained by the loss of a steamboat called the “Madison,” with her furniture and equipments, which, it is alleged, was sunk while landing at the wharf in the city, by striking an iron cylinder negligently permitted to lie on the wharf, and which, at the time, was concealed by the water. There was a verdict and judgment for the plaintiff below, and the defendant has appealed in error.

The record shows that the city authorities were, under their charter, and in the exercise of a part of their franchises, in the possession of the wharf, and had been for a number of years. That, through its officers, it exercised exclusive control and jurisdiction over it, charged and collected tolls or wharfage for its use by steamers and other “water-craft,” regulated and controlled the manner of its use, and provided, by ordinances, how it was to be kept.

About the year 1861, an iron or cast cylinder, that had been part of the machinery of a steamboat, and which is described as about nine feet long and from thirty-two to thirty-six inches in diameter, was thrown upon the wharf where it remained, at or about the same place, until February, 1867. At low or ordinary water, this cylinder was out of the water, and not dangerous; but during high water it was covered by the water, and could not be seen, and was, therefore, dangerous. At the time the “Madison” left, upon her last voyage, the cylinder was not under water. After a few days the boat returned, and landed at night at her usual landing. At this time the river had risen, and the cylinder was covered by the water, and was not seen. The boat striking it, a hole was knocked in the hull, causing her to sink at once.

The question first made for a reversal, and mainly relied upon, goes to the entire foundation of the action; that is, that to keep the wharf free from dangerous obstructions was the duty of the wharfmaster, a public officer, whose office is established by the law, and that the corporation is not liable for any loss accruing to third parties by reason of the failure of this officer to discharge his duty: that the action, if any accrued, should have been brought against the individual who at the time filled that office.

The proposition, that the State Government is not liable for the misfeasance or malfeasance of its officers or their failure to discharge their duties, is well settled, and admits of no doubt. See Clark v. The State, 7 Col., 315; City of Richmond v. Sorey's Adm'r, 17 Grattan, 375, and authorities there cited; The State of Tennessee v. Ward & Briggs, 9 Heis., 100; and this rule has been, in a certain class of cases, applied to the acts of officers of a municipal corporation. Judge Dillon, in his work on municipal corporations, states the rule as follows: “It may be observed in the next place, that when it is sought to render a municipal corporation liable for the acts of its servants or agents, a cardinal inquiry is, whether they are the servants or agents of the corporation. If the corporation appoints or elects them, and can control them in the discharge of their duties; can continue or remove them; can hold them responsible for the manner in which they discharge their trust; and if those duties relate to the exercise of corporate powers, and are for the peculiar benefit of the corporation, in its local or special interest, they may be justly regarded as its agents, and the maxim of respondeat superior applies. But if, on the other hand, they are elected or appointed by the corporation in obedience to the statute, to perform a public service, not peculiarly local or corporate, but because this mode of selection has been deemed expedient by the Legislature in the distribution of the powers of the government: if they are independent of the corporation as to the tenure of their office, and the manner of discharging their duties, they are not to be regarded as the servants or agents of the corporation, for whose acts or negligence it is implicitly liable; but as public or State officers, with such powers and duties as the statute confers upon them; and the doctrine of respondeat superior does not apply.” See sec. 772.

Some of the cases in which it has been held that the officers whose acts were in question were not the servants of the corporation, so as to make the latter responsible, upon the principle of respondeat superior, may be cited. The case of the City of Richmond v. Lorey, adm'r, 17 Grattan, 375, was where a slave, the property of the plaintiff below, was, in accordance with a city ordinance, admitted to the city hospital, to be treated for small pox; but, by the negligence of the attendants, was permitted to escape, and wandered off and died. Upon a review of the authorities, it was held that the city was not liable. It was held that the case was very analogous to an action against the State, for similar neglect upon the part of its officers and agents, in its asylums for the insane, blind, or dumb, which, upon the same principle, was not maintainable.

It has likewise been held...