Peterson v. Bannock County

• Decision Date: 06 May 1940
• Docket Number: 6704
• Citation: 102 P.2d 647,61 Idaho 419
• Parties: HANNAH PETERSON, Appellant, v. BANNOCK COUNTY, a Municipal Corporation, Respondent
• Court: Idaho Supreme Court

102 P.2d 647

61 Idaho 419

HANNAH PETERSON, Appellant, v. BANNOCK COUNTY, a Municipal Corporation, Respondent

No. 6704

Supreme Court of Idaho

May 6, 1940

JUDGMENT NOTWITHSTANDING VERDICT-COUNTIES-LIABILITY FOR TORTS.

1. Denial of defendant's motions for directed verdict and new trial did not deprive court of jurisdiction to enter judgment for defendant notwithstanding jury's verdict for plaintiff, since statutory provision for such judgments gives court opportunity to correct error in refusing to direct verdict. (I. C. A., sec. 7-224; sec. 7-602, subd. 8.)

2. Counties are true "public corporations" and political subdivisions of state, created without particular solicitation or consent of people within territory affected and hence are not liable for their officers and agents' torts when acting in governmental capacity, in absence of statute expressly permitting counties to be sued therefor.

3. A county acted in its "governmental capacity" as arm of state in conducting free county fair, organized and held pursuant to statutory provisions, and hence is not liable for injuries to one knocked down by horse while attending fair because of county's officers' and agents' negligence, in absence of showing that fair had any other revenue than that provided by taxation. (I. C. A., secs 22-201 et seq., 22-206, 22-208.)

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. The effect of a statute providing for judgment notwithstanding verdict, where a motion for a directed verdict has been overruled erroneously, is to give the judge an opportunity to correct the error.

II. Counties are political subdivisions of the state, created without solicitation or consent of the people within the territory affected, and are true public corporations.

III. A county fair organized, held and conducted pursuant to the provisions of I. C. A., Title 22, chapter 2, where no admission fee is charged to those who attend it, is not operated for profit. The county, in conducting it, is acting in its governmental capacity as an arm of the state, and is not liable for injuries caused by the negligence of its officers and agents, in the absence of a statute permitting it to be sued therefor.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Jay L. Downing, Judge.

Action for damages against Bannock County and others, for personal injuries. Judgment for the county. Affirmed.

Judgment and order affirmed. Costs awarded to respondent.

H. J Swanson, for Appellant.

A county in holding a county fair is acting in a proprietary capacity, since a county fair is an activity which the county or the board of county commissioners is not compelled to undertake or to carry on. It is purely optional with the county and the board of commissioners as to whether a county fair shall or shall not be held.

We think the law as laid down in Henderson v. Twin Falls County, 56 Idaho 124, 50 P.2d 597, 101 A. L. R. 1151 (where it was decided on demurrer), and the same case, 59 Idaho 97, 80 P.2d 801 (where it was again decided after a trial on the merits) applies, and that this case, as well as the cases cited therein, and relied on by the Idaho Supreme Court in arriving at its decision in this cited case, applies in all respects to the present case at the bar of the court.

On an appeal from an order granting a motion for a judgment notwithstanding a verdict, and on an appeal from a judgment entered by the court notwithstanding the verdict, no question arises as to the sufficiency of the complaint, but the court only considers the evidence. (Helgeson v. Powell, 54 Idaho 667, 34 P.2d 957.)

Parker et al. v. Fryberger, 165 Minn. 374, 206 N.W. 716, particularly second column, page 717, where on an appeal from an order made by the Minnesota court granting defendant's motion for a judgment notwithstanding the verdict, the court said:

"The evidence and not the complaint is controlling."

Milton E. Zener and C. M. Jeffery, for Respondent.

That Bannock County, as a political subdivision of the state of Idaho, is not, as a matter of law, liable for the injuries suffered by the plaintiff and appellant, irrespective of any fault or negligence on the part of Bannock County or its agents or employees. (Gorman v. Commissioners, 1 Idaho 655; Worden v. Witt, 4 Idaho 404, 39 P. 1114, 95 Am. St. 70; Davis v. Ada County, 5 Idaho 126, 47 P. 93, 95 Am. St. 166; Strickfaden v. Greencreek Highway Dist., 42 Idaho 738, 248 P. 456, 49 A. L. R. 1057; Davis v. State, 30 Idaho 137, 163 P. 373, Ann. Cas. 1918D, 911; Henderson v. Twin Falls County, 56 Idaho 124, 50 P.2d 597, 101 A. L. R. 1151; Dillwood v. Riecks, 42 Cal.App. 602, 184 P. 35.)

MORGAN, J. Ailshie, C. J., Holden, J., and BUDGE, J., Concurring, GIVENS, J., Concurring Specially.

OPINION

MORGAN, J.

While attending the Bannock County Fair, appellant was knocked down and severely and permanently injured by a horse, the property of John Villanova, which was being ridden by Glen Hymas. She brought this action for damages against Villanova, Hymas and Bannock County. The county was made a defendant on the theory that it was negligent in failing to provide for the safety of those who attended the fair, and in permitting the horse to be ridden into a throng of people and against appellant. Villanova and the county answered separately. The default of Hymas for failure to answer was entered. At the close of testimony on behalf of plaintiff Villanova and the county each moved for a nonsuit, which was denied. When the introduction of evidence was completed Villanova renewed his motion for a nonsuit and the county moved for a directed verdict. The motions were denied. The case was submitted to the jury which rendered a verdict in favor of plaintiff against all defendants. Judgment was entered on the verdict and Villanova and the county each moved for judgment notwithstanding the verdict; also for a new trial. Villanova's motions were denied. The county's motion for a new trial was denied and its motion for judgment notwithstanding the verdict was granted. Plaintiff has appealed from the order granting the county's motion for a judgment notwithstanding the verdict; also from the judgment in favor of the county.

Counsel for appellant argues that since the court had decided, in ruling on the county's motion for a directed verdict and in overruling its motion for a new trial (one of the grounds of which was that the court erred in overruling its motion for a directed verdict), that it was not entitled to a verdict and that, therefore, the court was without jurisdiction to grant the county judgment against appellant notwithstanding the verdict.

The denial of a directed verdict, and of a new trial, did not deprive the court of jurisdiction to enter a judgment notwithstanding the verdict, but laid the foundation for such judgment. Idaho Code Annotated, section 7-224 provides:

"When, at the close of the testimony, any party to the action moves the court to direct a verdict in his favor, and such motion is denied, upon a subsequent motion that judgment be entered, notwithstanding the verdict, or notwithstanding the jury has disagreed and been discharged, the court shall grant the same if the moving party was entitled to such direct verdict. . . . "

Section 7-602 relates to new trials and subsection 8 thereof is as follows:

"8. If in such application error is assigned in the denial upon the trial of a motion to direct a verdict, and the court upon said application for new trial determines that the motion to direct a verdict should have been granted, he may, in lieu of granting a new trial for such error, vacate any judgment that has theretofore been entered, and order a judgment for the moving party notwithstanding the verdict."

The effect of these sections is to give the court, when it has erroneously refused to direct a verdict, opportunity to correct the error on motion for judgment notwithstanding verdict.

The remaining question is as to whether a county, being a political subdivision of the state, is liable for the torts of its officers and agents while acting in its governmental capacity, since we have no statute expressly permitting it to be sued therefor.

In Strickfaden v. Greencreek Highway Dist., 42 Idaho 738, 747, 248 P. 456, 457, 49 A. L. R. 1057, we said:

"Counties may be said to be true public corporations. They are local organizations, which for the purposes of civil administration are invested with a few functions characteristic of a corporate existence. They are legal political subdivisions of the state, created or superimposed by the sovereign power of the state of its own sovereign will, without any particular solicitation or consent of the people within the territory affected. . . . " We further said (42 Idaho 738, 248 P. 456):

"It is well settled that in the absence of an express statute to that effect, the state is not liable for damages either for nonperformance of its powers or for their improper exercise by those charged with their execution. Counties are generally likewise relieved from liability, for the same reason. They are involuntary subdivisions or arms of the state through which the state operates for convenience in the performance of its functions. In other words, the county is merely an agent of the state and since the state cannot be sued without its consent, neither may the agent be sued." In support of this statement, we cited: Davis v. State, 30 Idaho 137, 163 P. 373, Ann. Cas. 1918D, 911; Worden v. Witt, 4 Idaho 404, 39 P. 1114, 95 Am. St. 70; Gorman v. County Commrs., 1 Idaho 655; Davis v. Ada County, 5...