Murray v. Bd. of Com'rs of Grant County.

• Decision Date: 28 November 1922
• Docket Number: No. 2642.,2642.
• Citation: 28 N.M. 309,210 P. 1067
• Parties: MURRAYv.BOARD OF COM'RS OF GRANT COUNTY.
• Court: New Mexico Supreme Court

28 N.M. 309

210 P. 1067

MURRAY

v.BOARD OF COM'RS OF GRANT COUNTY.

No. 2642.

Supreme Court of New Mexico.

Nov. 28, 1922.

Syllabus by the Court.

Counties are not liable for damages occasioned by defective public highways.

Appeal from District Court, Grant County; Ryan, Judge.

Action by Louis F. Murray against the Board of County Commissioners of Grant County. From a judgment for defendant, plaintiff appeals. Affirmed.

Counties are not liable for damages occasioned by a defective county highway, the duty of keeping it in repair being imposed upon the county by Code 1915, § 2627, under the rule that counties are not subject to liability for torts committed in the exercise of their governmental functions unless such liability is established by direct statutory provision.

A. N. White and James Royall, both of Silver City, for appellant.

J. S. Vaught, Dist. Atty., of Deming, for appellee.

PARKER, J.

The appellant brought an action against the board of county commissioners of Grant county to recover damages for injuries received by reason of a defective highway. The facts are that one of the approaches to a bridge on the Silver City-Deming Highway was washed out by an overflow of a creek over which the bridge was located. The county commissioners had taken no steps to protect the public from danger on account of the condition of the highway. The appellant, without negligence, drove his car over the bridge and into the excavation caused by the overflow, thereby suffering personal injuries and damage to his car. A demurrer to the complaint was sustained, and, the appellant electing not to plead further, a judgment of dismissal was entered, from which judgment this appeal is taken.

1. The sole question in this case is whether, under such a state of facts, a county is liable for damages. The road was a county highway, and the duty of keeping it in repair was imposed upon the county by section 2627, Code 1915. The general rule is established by the great weight of authority that counties are not subject to liability for torts committed in the exercise of their governmental functions, unless such liability is established by direct statutory provision. See 15 C. J., “Counties,” § 272; 7 R. C. L., “Counties,” § 29; 13 R. C. L., “Highways,” § 256; Dillon, Munic. Corp. (5th Ed.) § 1640; McQuillin, Munic. Corp. §§ 2605, 2719. The exemption of counties from liability for torts in the performance of its governmental functions is based upon the proposition that a county is an involuntary subdivision of the state and exercises, by direction and command of the state, a portion of the governmental functions thereof. It is therefore as much exempt from liability for torts as the state itself. See, in this connection, Hughes v. County of Monroe, 147 N. Y. 49, 41 N. E. 407, 39 L. R. A. 33, and extensive note wherein all the cases down to the date of the publication of the report seem to be collected. We do not understand counsel for appellant to controvert the general proposit...