Patterson v. City of Little Rock

• Decision Date: 07 April 1941
• Docket Number: 4-6298
• Citation: 149 S.W.2d 562,202 Ark. 189
• Parties: PATTERSON v. CITY OF LITTLE ROCK
• Court: Arkansas Supreme Court

149 S.W.2d 562

202 Ark. 189

PATTERSON v. CITY OF LITTLE ROCK

4-6298

Supreme Court of Arkansas

April 7, 1941

Appeal from Pulaski Circuit Court, Second Division; Lawrence C Auten, Judge; affirmed.

Judgment affirmed.

J H. Carmichael, Jr., and Louis A. Saunders, for appellant.

John Sherrill, Thomas R. Vaughan and Cooper Jacoway, for appellees.

OPINION

MCHANEY, J.

Appellant, a minor 5 years of age, by her next friend, brought this action against appellees, the city of Little Rock, the Little Rock Municipal Water Works and its Commissioners, to recover damages for personal injuries she alleged she sustained through the negligence of the water works employees in leaving open and uncovered a water meter box located on the east side of Foster street in the city of Little Rock. Further negligence alleged was that appellees allowed "grass to grow over the hole which caused same to be hidden and could not be ascertained or seen by a person and that said meter box was placed almost directly in front of plaintiff's house." The injuries were described and damages prayed in the sum of $ 15,500. In an amended and substituted complaint, it was alleged that the city is the owner and operator of the Little Rock Municipal Water Works, hereinafter called Water Works, and that under act 131 of 1933, it had the authority to purchase and operate the Water Works, and that by act 215 of 1937, it was provided that commissioners should be appointed to operate the Water Works; that the latter by its commissioners is engaged in the business of selling and distributing water to the citizens of the city and charges the consumer certain rates therefor, and, in doing so, it installs water mains and metal water boxes for meters to determine the amount consumed. The negligence, injuries and damages were alleged as in the original complaint.

To this complaint a demurrer was interposed on two grounds: 1, that the Water Works is not a legal entity nor do the commissioners thereof have the power under the law to sue or be sued as such, and that the court has no jurisdiction in this action; 2, that the city, which is the owner and operator of the Water Works, cannot be sued in this action, as the operation of the Water Works by it is a governmental and public function, which cannot be hampered or interfered with by suits of this nature, nor is the city liable to respond in damages for the matters and things set forth in the complaint.

The court sustained the demurrer. Appellant declined to plead further and elected to stand on her amended and substituted complaint, which was dismissed, and this appeal followed.

Appellant makes this concession: "It is conceded that if the state imposed upon the municipality a duty to carry out a function of the state, there is no question but that the municipality would be engaged in a governmental function and so would be immune from suit." Section 1 of act 131 of 1933 provides: "That any city or incorporated town in the state of Arkansas may purchase or construct a waterworks system...