McNulty v. Vickery

• Decision Date: 27 June 1921
• Docket Number: 21922
• Court: Mississippi Supreme Court
• Parties: MCNULTY v. VICKERY et al

88 So. 718

126 Miss. 341

MCNULTY v. VICKERY et al

No. 21922

Supreme Court of Mississippi

June 27, 1921

March 1921

COUNTIES. Supervisors not liable for injuries to persons resulting from exercise of powers of office in good faith.

Members of the board of supervisors of a county are quasi-judicial officers, and are not liable for damages for injuries to private persons resulting from the exercise of their discretionary powers of office in good faith.

HON. E D. DINKINS, Judge.

APPEAL from circuit court of Yalobusha county, HON. E. D. DINKINS Judge.

Action by Vadie McNulty against W. G. Vickery and others. Demurrer to the declaration was sustained, and plaintiff appeals. Affirmed.

Judgment affirmed.

Stone &amp Stone, for appellant.

Let it be understood in the beginning that this suit was brought with the view that the supervisors were liable on their bond because they had ignored the duty plainly laid down in our statutes, section 4449, Code of 1906, section 7129, Hemingway's Code, and running on back, section 3937 of Code of 1892, that statute providing when a bridge, causeway or the work on any road shall be necessary . . . the board of supervisors shall contract for building and keeping the same in repair.

Here is the plain mandatory provision that the supervisors shall contract; simply this and nothing more. Our declaration states that it had been repeatedly called to the attention of the board that they were maintaining a death trap at Turkey Creek. We do not believe that it has gotten to the point that a public officer can make his bond and then sit up and absolutely ignore the plain mandatory provisions of the law and then have it said that there is no remedy against him. We are perfectly aware of the fact that quite a number of cases have gone to the supreme court where a case against a county or against a road overseer or against a road contractor or against a supervisor who was road commissioner has failed, but we submit that we have yet to see any holding by the court that a board of supervisors can brutally ignore the provision of section 4449 of the Code of 1906, section 7129 of Hemingway's Code, and absolutely refuse to contract for the repair of a county bridge for many months and refuse to stop travel on it after they have been notified of its dangerous condition and successfully resist a suit for the death of a traveler. Other officers are held on their bonds for violation of their duties where individuals are injured. See the case of Brown v. Lester, 12 S. & M. 392, reaffirmed and commented on with approval in Baugh v. Land, 40 Miss. 498, and other cases; and we fail to see how it can be successfully argued that there is a blanket immunity for boards of supervisors and that they can wantonly ignore their duty and be exempt from any penalty whatsoever.

We call the court's attention to the case of Mounds v. Vaughn, 77 Miss. 684, 27 So. 999, where our view of this statute and its effects is distinctly upheld. It is true that it was not necessary in the decision of this case to pass on section 3937 of the Code and it is true that in that case the pleader went off on the proposition of inspection, etc., and stated himself out of court; however, the court does proceed to show wherein they were short of a case by the following words: "Nor is it averred that the board had failed to contract for the building and keeping in repair of the bridge as authorized by section 3937 of the Code."

The learned justice might have said "command" instead of "authorized" because it is a command, and when you consider with that the statement in your declaration that this board and the members thereof had been repeatedly notified of the unsafe and deadly character of the deathtrap that they were maintaining on Turkey Creek, we think there can be no argument on the point that the demurrer was not well taken, and we do not think we are presumptions in saying that this case brings to a test whether or not the board is exempt for any neglect of duty, even though the neglect caused the death of a citizen. Let it again be understood that we are not seeking to hold them liable as road commissioners or as inspectors in lieu of overseer or contractors or anything except a liability for the violation of the plain duty under the law to contract to repair that bridge. It was the plain duty of the board to make a contract for the repair of that bridge or to stop the public at least from going over it. They were maintaining a nuisance that amounted to a death trap and they had repeated the constant notice of the same. They violated that duty wantonly and knowingly, and we are seeking to impose a liability on them for that violation.

We submit that the judgment of the circuit court in sustaining the demurrer should be reversed and this case remanded for further proceeding.

H. H. Creekmore, for appellee.

The plaintiff in her brief contends that the declaration states a good cause of action which is a violation of the duty imposed by section 4449, Code of 1906, section 7129, of Hemingway's Code, and in the brief of counsel for appellant this statute is quoted in part and the argument is made that the declaration brings the case within the provisions of this statute and that the statute is mandatory on the board of supervisors.

The plaintiff does not bring herself within the provisions of this statute. The pertinent part of the statute is this: "When a bridge, causeway or other work on any road shall be necessary, and the road overseer cannot make it with the labor of the hands belonging to the road, the board of supervisors shall contract for building and keeping the same in repair."

The plaintiff has not brought herself by her declaration within the provisions of this statute because while she has charged that the bridge was dangerous and therefrom it might be inferred that repair was necessary she nowhere, in her declaration, avers that the overseers of the road could not make the bridge safe with the labor of the hands belonging to the road. Nor does she aver in her declaration that the roads of Yalobusha county were being worked under a system of which this statute is a part. This certainly is not the bridge referred to in section 7229 of Hemingway's Code.

Another difficulty in the path of the plaintiff on this statute is that the duty of the board arises only in cases where the road overseers could not do the work with the labor of the hands belonging to the road, but also it is their duty only when the work is necessary. The determination of the necessity of the work must be reposed in the discretion of someone and certainly the necessity of the work would rest in the discretion of the board of supervisors, the agents of the county, and who by the constitution are given full jurisdiction over roads, ferries and bridges.

And a member of the boards of supervisors cannot be held liable in damages for a wrongful exercise of discretion committed to him nor for a failure to exercise such discretion. This will be discussed more fully later.

The brief for plaintiff refers to the case of Moulds v. Vaughn, 77 Miss. 681, and says that the plaintiff's view of the statute and its effect is upheld in that case. Mrs. Mould was injured by the falling of a defective bridge and sued Vaughn, a supervisor, and the surety on his official bond. A demurrer was interposed and the declaration was sustained and the case was affirmed on appeal. The court in its opinion said that the only statute, if any, which could save appellant's case was section 3922, of the Code of 1892, which is not the section relied on by the plaintiffs here. It is true that the court said that it was not averred that the board had failed to contract for the building and keeping in repair of the bridge as provided by section 3937 of the Code. This statement is far from a holding that such averment would make a good declaration but aside from the failure of the declaration to bring the case within the provisions of section 7129, of Hemingway's Code, the suit would not be maintainable if the necessary averments to bring it within the provisions of the statute were contained in the declaration.

The board of supervisors, by section 170 of the Constitution, are given full jurisdiction over roads, ferries, and bridges to be exercised in accordance with regulations prescribed by the Legislature.

Section 85 of the Constitution directs that the legislature shall provide by general law for the working of public roads by contract or by county prisoners or by both, but that such law shall be put into operation only by vote of the board of supervisors in those counties where it may be desirable. Pursuant to these constitutional provisions the legislature has enacted various laws authorizing different schemes of working public roads.

The board of supervisors, sometime by vote of the people and sometimes without vote of the people, have discretion to adopt such of these plans as it sees fit. And there is a general rule of law, too well settled perhaps for citation of authorities, that public officers are not liable individually for a wrongful exercise of discretion or a mistake in judgment, but may be liable for a negligent performance of a merely ministerial duty. Which of the various schemes for working public roads was in force, in Yalobusha county, the declaration does...