Metropolitan Government of Nashville and Davidson County v. Allen

• Decision Date: 07 April 1967
• Citation: 415 S.W.2d 632,220 Tenn. 222,24 McCanless 222
• Parties: , 220 Tenn. 222 The METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Tennessee v. Phebe Cooper ALLEN.
• Court: Tennessee Supreme Court

Page 632

415 S.W.2d 632

24 McCanless 222, 220 Tenn. 222

The METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Tennessee v. Phebe Cooper ALLEN.

Supreme Court of Tennessee.

April 7, 1967.

Charles E. Griffith, III, Asst. Metropolitan Counsel, Nashville, for plaintiff in error.

Henry Denmark Bell, Nashville, for defendant in error.

OPINION

BURNETT, Chief Justice.

This action was brought for damages incurred by the defendant in error when she slipped or fell on an allegedly loose step located within the right-of-way of Jones Avenue in an area of Davidson County known as Old Hickory. As a result of this fall the trial judge without the intervention of a jury rendered a verdict in favor of the defendant in error. The Metropolitan Government appealed. All questions are stipulated, and the only question for our determination is whether or not the Metropolitan Government of Nashville and Davidson County, Tennessee, 'is immune from tort liability for injuries incurred as a result of the negligent construction of its street and sidewalks which are located in the area outside of the former City of Nashville, but within the area of Davidson County, which is now known as the General Services District outside the Urban Services District of the Metropolitan Government of Nashville and Davidson County.'

This question is indeed very interesting, and in addition to the able briefs filed on both sides, we have spent some time in making an independent investigation of the authorities. After having done so, we have reached a conclusion which will hereinafter be stated.

The obvious argument and contention on behalf of the Metropolitan Government is that by its creation the liability imposed upon the Metropolitan Government in districts outside of what was formerly the City of Nashville has not been changed and that the immunity of counties for tort liability for an accident that happens on the streets and sidewalks in the area outside of the former City of Nashville applies to the Metropolitan Government as it formerly applied to that part of Davidson County outside the City of Nashville.

In Tennessee, territorially and politically, counties are integral parts of the State. They are created for civil administration, in keeping with the policies of the State, and with such powers as may be delegated and conferred upon them, and they serve as agencies of the State for the purposes specified, subject to such liabilities only as are imposed upon them by law. 14 Am.Jur., Counties § 3, page 185. Burnett v. Maloney, 97 Tenn. 697, 37 S.W. 689, 34 L.R.A. 541; State ex rel. Citizens of Wilson County v. Lebanon & Nashville Turnpike Co., 151 Tenn. 150, 268 S.W. 627; Lee v. Davidson County, 158 Tenn. 313, 13 S.W.2d 328. The first of such cases probably is that of Wood v. Tipton County, 66 Tenn. 112.

Since the Tipton County case was decided in the early history of this State all of the judicial decisions have been to the effect that the counties were immune from tort actions against them. Of course, there are exceptions along the line of nuisance actions and things of that kind where under certain circumstances actions were allowed against the county. This Court though in Buckholtz v. Hamilton County, 180 Tenn. 263, 174 S.W.2d 455, attempted to strike down such holdings and overruled the case of Chandler v. Davidson County, 142 Tenn. 265, 218 S.W. 222, which had held that the county was liable for a nuisance in the construction and maintenance of a ditch apart from the road and not in the building of the road. The Court in the Buckholtz opinion, supra, rested that opinion primarily upon a former opinion of the Court, that of Odil v. Maury County, 175 Tenn. 550, 552, 136 S.W.2d 500, 501, wherein this Court relied upon a statement from 14 Am.Jur. to the effect that counties being organized for public purposes are a branch of the State government and are immune from suit. Insofar as the parties here are concerned there is no conflict in the proposition that a county is immune from tort action for personal injuries resulting from negligent construction, maintenance or operation of its streets, roads and highways.

The contrary though as to the liability of a city or municipal corporation has been held by the courts of this State. In 1839 in Humes v. Mayor, etc., of Town of Knoxville, 20 Tenn. 403, this Court first held that a municipal government is the proprietor of its streets which it holds in trust as easements for the benefit of the citizens, and which it has the power to grade, pave and otherwise improve, and about this same time in Mayor and Aldermen of Memphis v. Lasser, 28 Tenn. 757, this Court referring to the Humes case, supra, said this:

'Their charter is a special franchise for the private benefit and emolument of the city of Memphis, although the public may no doubt be benefited by it. It was held by this court in the case of Humes vs. Mayor and Aldermen, (1 Hump. 403) that a municipal corporation, for the government of a town or city, is the proprietor of the streets, which it holds as easements, in trust, for the benefit of the corporation; and which it has the power to grade, pave or otherwise improve. And it is well settled at this day, both in England and America, that such a corporation is liable to be sued in actions of tort in like manner as natural persons. Angel and Ames on Corporations, 328, 334. In the case of Yarbrough v. Bank of England, (16 East. 6,) which was an action of trover, it was moved in arrest of judgment, that the action, being founded in tort, would not lie against a corporation. But Lord Ellenborough, Ch. J., held, that whenever a corporation is competent to do, or order to be done, any act on its behalf, it is liable for the consequences of such act, if it be of a tortious nature, and to the prejudice of another. The same general proposition is maintained by Marshall, Ch. J., (Fowle v. Common Council), 3 Peters R. (398) 409 (7 L.Ed. 719). And it is said to be the policy of the present day, especially in the United States, where corporations for various purposes are becoming so numerous, to attach to them the same liabilities to which natural persons are subject; and that they are so held liable. Angel and Ames on Corp., 333; (Bushel v. Commonwealth Ins. Co.) 15 Serg. and Rawle R. (Pa.) 173. Municipal corporations are likewise liable for the wrongful acts and neglects of their servants and agents, upon the same grounds, in the same manner, and to the same extent as natural persons. Angel and Ames, 250; (Chesnut Hill & Spring House Turnpike Co. v. Rutter) 4 Serg. and Rawle (Pa.) 6; (Bailey v. Mayor, etc., of City of New York) 3 Hill R. (N.Y.) 531; (Thayer v. City of Boston) 19 Pickering R. (Mass.) 513. This proposition is equally clear upon principle and authority. It is the duty of the corporation to exercise proper care and prudence in the selection and employment of suitable agents and servants; to retain the requisite degree of control and superintendence over them in the performance of their duties; to enforce such measure of vigilance and care as will guard against all unusual or unreasonable exposure to injuries of any kind; all this they may and ought to stipulate for, and exact from those in their employ. And they will not be permitted to shield themselves from the consequences of their own gross neglect of duty, by turning the injured party round to seek redress from the irresponsible agent or servant.'

We have quoted this opinion rather extensively, as the reasoning of this Court over a hundred years ago is more applicable today than it was then and has been followed by judicial opinions of this Court since that time.

In Humes v. Mayor, etc., of Town of Knoxville, supra, the Court stated why a municipal corporation would be liable thus:

'From these authorities the necessary conclusion is that every proprietor of land, where not restrained by covenant or custom, has the entire dominion of the soil and the space above and below to any extent he may choose to occupy it, and in this occupation he may use his land according to his own judgment, without being answerable for the consequences to an adjoining owner, unless by such occupation he either intentionally or for want of reasonable care and diligence inflicts upon him an injury.'

This reasoning of a hundred years ago is equally applicable today. See such cases as Fleming v. City of Memphis, 126 Tenn. 331, 148 S.W. 1057, 42 L.R.A., N.S., 493; Mayor, etc., of City of Knoxville v. Bell, 80 Tenn. 157; and many more that may be found...