Norman v. City of Chariton
| Decision Date | 09 February 1926 |
| Docket Number | 37198 |
| Citation | 207 N.W. 134,201 Iowa 279 |
| Parties | JULIA E. NORMAN, Administratrix, Appellant, v. CITY OF CHARITON, Appellee |
| Court | Iowa Supreme Court |
Appeal from Lucas District Court.--F. M. HUNTER, Judge.
ACTION against a city, to recover damages for the death of plaintiff's intestate. A demurrer to the petition was sustained, and plaintiff appeals.
Affirmed.
Stuart & Stuart, for appellant.
J. W Kridelbaugh, for appellee.
VERMILION J. DE GRAFF, C. J., and STEVENS and FAVILLE, JJ., concur.
The petition alleged that plaintiff's intestate, while in the employ of the defendant city in charge of a grading machine belonging to the city, and engaged in work in a park belonging to the city, was struck and killed by a tractor engine belonging to, and being operated by an employee of the city, as the motive power for the grading machine. It was alleged that the deceased was in the exercise of due care, and that his death was caused by the negligence of the employee operating the tractor; that such employee was incompetent; and that the city was guilty of negligence in employing him.
The demurrer raised the question that the work in which the alleged negligent employee was engaged, was being carried on by the city in its governmental capacity, and that it is not liable for the negligence of its servants engaged in the exercise of a governmental function.
There is no dispute about the general principles involved. It is conceded by appellant "that there is no liability on the part of the city for the negligence, misfeasance, or nonfeasance of its officers, agents, and employees in performing its governmental functions." The issue is limited to whether the construction and maintenance of a public park by a city are the exercise of a governmental or a ministerial function.
It is a matter of universal judicial recognition that a municipality possesses and may exercise two classes of powers. The one is governmental in character, where, generally speaking, it acts as a sovereign, in government and control of its inhabitants and in their interest generally. The other is proprietary, ministerial, and, we have said, quasi private, where it acts for the private advantage of the inhabitants of the city, and in some measure for the city itself. Incorporated Town of Sibley v. Ocheyedan Elec. Co., 194 Iowa 950, 187 N.W. 560. We have also said that, while ordinarily the line of demarcation is not indistinct, it is sometimes a narrow one. Hines v. City of Nevada, 150 Iowa 620, 130 N.W. 181; Miller Groc. Co. v. City of Des Moines, 195 Iowa 1310, 192 N.W. 306.
The effect of the distinction, in respect to persons injured by the negligence of the municipality or its servants or officers, is that, if the act resulting in injury was done in the exercise of a governmental function, no liability attaches, but if in the exercise of a function that is ministerial or proprietary, the doctrine of respondeat superior applies, and the municipality is liable, the same as any other employer.
Various considerations have been given importance in determining whether a particular act was an exercise of governmental or ministerial function, and not always with entire consistency.
That a municipal corporation is liable for an injury caused by a defect negligently permitted in its streets has long been the settled doctrine of this state. The liability has been predicated upon, or said to arise from, the power given by statute to improve the streets. Rowell v. Williams, 29 Iowa 210; Collins v. City of Council Bluffs, 32 Iowa 324.
It was held at an early day that, the city council having directed a public improvement, "the further prosecution of it is purely of a ministerial character," and that, "where the work is purely ministerial, the corporation is subject to the same rules which govern the individual." This was held in reference to a street improvement negligently constructed, to the damage of adjacent property. Cotes & Patchin v. City of Davenport, 9 Iowa 227. The rule so stated has been repeatedly applied to like work. Ross v. City of Clinton, 46 Iowa 606; Hume v. City of Des Moines, 146 Iowa 624, 125 N.W. 846. It has been held to authorize the recovery of damages for the negligent construction of a sewer; and it was held that, in constructing sewers and maintaining them in repair, a municipal corporation acts ministerially, and that, having authority to do the act, it is bound to the exercise of due care. Hines v. City of Nevada, supra.
In McMahon v. City of Dubuque, 107 Iowa 62, 77 N.W. 517, the city used its own steam roller to roll macadam laid in its streets by a contractor, and retained compensation for so doing. Damage was caused by the negligent emission of sparks from the engine, and it was said:
In Ogg v. City of Lansing, 35 Iowa 495, it was held that the powers conferred by statute to establish boards of health and prevent the spread of contagious diseases were of a legislative and governmental nature, for a defective execution of which the city could not be held liable.
In Calwell v. City of Boone, 51 Iowa 687, 2 N.W. 614, it was held that a city was not liable for wrongful acts of a police officer in making an arrest. It was said that the police regulations of a city were enforced in the interest of the public, not of the city in its corporate capacity. See, also, Looney v. City of Sioux City, 163 Iowa 604, 145 N.W. 287.
The same doctrine was applied to firemen who negligently used fire-fighting apparatus belonging to the city. Saunders v. City of Ft. Madison, 111 Iowa 102, 82 N.W. 428; Bradley v. City of Oskaloosa, 193 Iowa 1072, 188 N.W. 896. In the Bradley case it was said that the city was under no obligation to maintain a fire department.
In McFadden v. Town of Jewell, 119 Iowa 321, 93 N.W 302, where an...
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