McKenzie v. City of Florence

• Decision Date: 14 May 1959
• Docket Number: No. 17534,17534
• Citation: 108 S.E.2d 825,234 S.C. 428
• Court: South Carolina Supreme Court
• Parties: S. E. McKENZIE, Appellant, v. CITY OF FLORENCE, National Surety Corporation, Melvin D. Adams, Walter L. Teal, and Ralph F. Parker, of whom City of Florence and National Surety Corporation, are, Respondents.

Page 825

108 S.E.2d 825

234 S.C. 428

S. E. McKENZIE, Appellant, v. CITY OF FLORENCE, National Surety Corporation, Melvin D.

Adams, Walter L. Teal, and Ralph F. Parker, of

whom City of Florence and National

Surety Corporation, are, Respondents.

No. 17534.

Supreme Court of South Carolina.

May 14, 1959.

Thomas M. Spence, Myrtle Beach, McEachin, Townsend & Zeigler, Florence, for appellant.

Willcox, Hardee, Houck & Palmer, W. H. Caldwell, Florence, for respondents.

MOSS, Justice.

The appellant, S. E. McKenzie, brought this action, in tort, against the City of Florence, National Surety Corporation, the respondents herein, and three policemen of the said City of Florence. The complaint sets forth two causes of action for alleged negligent, reckless, willful and wanton conduct of the police officers of the City of Florience in the arrest and imprisonment of the appellant in the city jail. The complaint alleges that the acts of the police officers represented failure on their part to perform their duties as members of the police department of the City of Florence, and asserts that during a wrongful arrest, the appellant received serious and permanent bodily injuries, which said injuries were aggravated by the failure and refusal of the said police officers to call a physician to treat the appellant, while he was illegally detained in jail.

The complaint alleges that the City of Florence and the National Surety Corporation entered into a contract commonly called 'a bond' for the benefit of the appellant, in which said bond the National Surety Corporation agreed:

'to idemnify City of Florence, South Carolina, (hereinafter called Obligee) for the use and benefit of Police Department, (hereinafter called Insured) against any loss or losses caused to the Insured, the amount of indemnity on each of the Employees hereinafter defined being the sum of Twenty-five Hundred and 00/100 ($2500.00), (hereinafter called Bond Penalty) through the failure of any such Employees, acting alone or in collusion with others, to perform faithfully his duties or to account properly for all monies and property received by virtue of his position or employment during the term of this bond as hereinafter defined.'

The City of Florence demurred to the complaint upon the ground that being a municipal corporation, and an agency of the state, it cannot be sued in tort for the acts and delicts of its police officers, except where such an action is given by statute. The demurrer also asserts that the complaint fails to allege any legal authority whereby the City of Florence is liable in tort for the acts and delicts of its police officers.

The National Surety Corporation demurred to the complaint and challenged the sufficiency of the allegations thereof to state a cause of action against it, for the reason that the said bond indemnifies the City of Florence for the use and benefit of its police department against the losses specified in the bond, but not for the benefit of the appellant. It is further asserted by the demurrer that the bond was not given pursuant to any statute or ordinance and that no action could be maintained against the City of Florence, the obligee in the bond, because it is immune from suits in tort.

The Honorable G. Badger Baker, Resident Judge of the Twelfth Circuit, sustained the demurrers by separate orders dated October 17, 1958. Timely notice of intention to appeal from these orders were duly filed, and by consent of the parties, the separate appeals were united for the purpose of a hearing in this Court. The exceptions present three questions for decision: (1) Can the City of Florence, a municipal corporation, be sued in tort for the acts and delicts of its police officers, in the absence of a statute granting such right of action? (2) Can the City of Florence, a municipal corporation, waive its immunity from tort liability? (3) Does the bond in question create a right of action thereon by the appellant?

It is well for us to point out what was stated in the case of Mullins Hospital v. Squires, 233 S.C. 186, 104 S.E.2d 161, 165, as follows:

'* * * In many jurisdictions the courts have drawn a distinction between municipal activities that are governmental and those that are in the field of business rather than of government and are loosely referred to as proprietary. But no such distinction is made in this state; all functions exercised by municipal corporations under powers constitutionally granted to them by the General Assembly are considered public and governmental. Irvine v. Town of Greenwood, 89 S.C. 511, 72 S.E. 228, 36 L.R.A.,N.S., 363; Looper v. City of Easley, 172 S.C. 11, 172 S.E. 705; Carter v. City of Greenville, 175 S.C. 130, 178 S.E. 508; Hill v. City of Greenville, 223 S.C. 392, 76 S.E.2d 294; Sammons v. City of Beaufort, 225 S.C. 490, 83 S.E.2d 153.'

It has long been the settled law of this state that, except as expressly permitted by statute, municipal corporations are not liable in damages for a tort committed by any of its officers or agents. Young v. Commissioners of Roads, 2 Nott & McC. 537, 11 S.C.L. 537; White v. City Council of Charleston, 2 Hill 571, 20 S.C.L. 571; Young v. City Council of Charleston, 20 S.C. 116; Parks v. City Council of Greenville, 44 S.C. 168, 21 S.E. 540; Irvine v. Town of Greenwood, 89 S.C. 511, 72 S.E. 228, 36 L.R.A.,N.S., 363; Parish v. Town of Yorkville, 96 S.C. 24, 79 S.E. 635, L.R.A.1915A, 282; Triplett v. City of Columbia, 111 S.C. 7, 96 S.E. 675, 1 A.L.R. 349; Oswald v. City of Orangeburg, 154 S.C. 105, 151 S.E. 230; Reeves v. City of Easley, 167 S.C. 231, 166 S.E. 120; Sheriff v. City of Easley, 178 S.C. 504, 183 S.E. 311; Abernathy v. City of Columbia, 213 S.C. 68, 48 S.E.2d 585; Fairey v. City of Orangeburg, 227 S.C. 458, 88 S.E.2d 617; Clarke v. City of Greer, 231 S.C. 327, 98 S.E.2d 751, and Mullins Hospital v. Squires, 233 S.C. 186, 104 S.E.2d 161. Numerous other cases could be added to the foregoing list sustaining the doctrine that an action for damages for tort will not lie against a municipal corporation, unless the corporation is made liable by statute, because such corporation is merely an agent of the state for governmental purposes. The last case from this Court so holding is that of Collins v. City of Greenville, 233 S.C. 506, 105 S.E.2d 704.

It is the position of the appellant that the foregoing cases and the doctrine established thereby should be entirely overruled and no longer followed as the law of this state. It should be stated that upon proper petition this Court granted the appellant leave to argue against the authority of the foregoing decisions.

The doctrine of sovereign immunity has been established in this state since 1820, when it was decided in the case of Young v. Commissioners of Roads, 2 Nott & McC. 537, 11 S.C.L. 537, that the Board of Commissioners of the Roads was not liable to a private action for neglect of duty. In this case the plaintiff brought an action against the Commissioners of the Roads for Edgefield District for injury done to his wagon and horses from the insufficiency of a bridge, which it was alleged that the Commissioners were bound to keep in proper order and had not done so. A verdict was given for the plaintiff and a motion was submitted to set aside the verdict on the ground that the Commissioners of the Roads are not liable, in a private action, for a neglect of duty. In ruling that the Court was in error in not granting the motion, the Court said:

'In the case of Russell vs. the men of Devon, (2 T.R. 667), it was ruled, that such an action would not lie against an overseer of the roads for an error of judgment in the execution of his trust. No case has been found, in which such an action has been sustained. Where an officer has been appointed to act, not for the public in general, but for individuals in particular, and from each individual receives an equivalent for the services rendered him, he may be responsible in a private action, for a neglect of duty, but where the officer acts for the public in general, the appropriate remedy for his neglect of duty, is a public prosecution:

(Harman vs. Tappenden et al., 1 East, 555) And such has been the practice in this state.'

We can assume that the immunity rule in this state had its inception in the approval by our Courts of the Men of Devon case, and the doctrine of that case as was followed in Young v. Commissioners of Roads, supra, has been a part of the public policy of this state for one hundred and thirty-nine years. Acquiescence in it for this period of time justifies the conclusion that it is now agreeable to, and part of, the public policy of the state.

As is heretofore stated, the last case from this Court is that of Collins v. City of Greenville, supra [233 S.C. 506, 105 S.E. 709], where we quoted with approval from the case of Parish v. Town of Yorkville, supra, the following:

'It has been settled by a long line of decisions in this court that an action for damages for tort will not lie against a municipal corporation, unless the corporation is made liable by statute, because such corporation is merely an agent of the state for governmental purposes.'

We realize that the immunity rule has been criticized by some Courts as being archaic and outmoded. Such was the case of Hargrove v. Town of Cocoa Beach, Fla., 96 So.2d 130, 60 A.L.R.2d 1193. Despite the criticism and denunciation of the doctrine, it has been a recognized rule of this state for many years, and to depart from such rule would, of necessity, overrule many decisions of this Court.

There is no statute in this state that empowers the appellant to bring this action, and in the absence of any statute surrendering the immunity of a municipality from suit, this Court will not overrule and overthrow the decided cases upon the point. This Court is not invested with the power to make laws.

In the case of Reeves v. City of Easley, 167 S.C. 231, 166 S.E. 120, 128, this...