Post v. Davis County

• Decision Date: 15 December 1922
• Docket Number: 34819
• Citation: 191 N.W. 129,196 Iowa 183
• Parties: FRED POST, Appellee, v. DAVIS COUNTY, Appellant
• Court: Iowa Supreme Court

191 N.W. 129

196 Iowa 183

FRED POST, Appellee, v. DAVIS COUNTY, Appellant

No. 34819

Supreme Court of Iowa, Des Moines

December 15, 1922

SUPPLEMENTAL OPINION JUNE 22, 1923.

Appeal from Jefferson District Court.--C. W. VERMILION, Judge.

ACTION for damages against the defendant county for personal injuries resulting from a defective county bridge. There was a verdict for the plaintiff, and judgment thereon. The defendant appeals.

Reversed.

Buell McCash, County Attorney, T. A. Goodson, and J. P. Starr, for appellant.

Howell Elgin & Howell and Thoma & Thoma, for appellee.

EVANS J. STEVENS, C. J., PRESTON, C. J., ARTHUR, FAVILLE, and DE GRAFF, JJ., concur. WEAVER, J., dissents.

OPINION

EVANS, J.

I.

The plaintiff was injured on August 10, 1919, as a result of a runaway of his team, caused by a defective bridge which he was crossing. The plaintiff alleged that the bridge in question was, at the time of its construction, a county bridge, within the meaning of the law, and he introduced evidence tending to support such allegation. Such evidence tended to show that the bridge was constructed about 20 or 25 years ago. The defendant denies vigorously that such bridge was a county bridge, within the meaning of the law of liability for damages heretofore obtaining. Much of the record and argument is devoted to that issue. We are disposed to spend no time upon that question, and to assume the correctness of plaintiff's position in that regard, for the purpose of this appeal. The law of liability upon which the plaintiff relies is that which had its first promulgation in Wilson v. Jefferson County, 13 Iowa 181, which precedent has been followed at all times since, though with more or less protest as to its soundness. That decision was made to rest upon the power conferred and duty imposed by the then existing statute upon the board of supervisors to build and maintain the necessary bridges in their respective counties. The power thus conferred upon the board of supervisors was broad and unqualified, and it was held that such power imposed a corresponding obligation or duty to exercise the same, and that a failure to exercise it rendered the county liable for all damages resulting from such failure. Within the range of the power thus conferred by the statute, the board was supreme, and was not subject in its action to any higher or directing authority. It was held, therefore, that liability of the county for the failure of the board to exercise its prerogative and to perform its duties was a necessary consequence. That the conclusion thus reached was not sound in principle has been the general consensus of opinion of the court in its changing membership for the succeeding 50 years, during which it nevertheless followed the case as a precedent. Some of the declarations of this court in subsequent cases, setting forth the unsoundness in principle of the precedent, will be quoted in a separate division hereof. Because of this continuing attitude of the mind of the court toward the precedent thus established, its authority has been confined to the narrowest limits. The result is that this court, in obedience to the precedent, has sustained the rule of liability of the county for damages resulting from a defective county bridge, and has constantly refused to apply the rule or argument to any other subject-matter within the field of power and duty of the same officials. Kincaid v. Hardin County, 53 Iowa 430, 5 N.W. 589; Lindley v. Polk County, 84 Iowa 308, 50 N.W. 975; Wood v. Boone County, 153 Iowa 92, 100, 133 N.W. 377.

In the Kincaid case, this court refused to extend the authority of the precedent to a case involving the defective construction of a courthouse. In the Lindley case, it refused to extend it to a case of wrongful confinement of a prisoner in an unsanitary jail. In the Wood case, it refused to extend it to a case of negligence of duty in supporting the poor.

Though the statute (Section 312, Revision of 1860) in force at the time the precedent was established, imposed upon the board the duty of erecting and maintaining "all bridges" which were necessary to the public convenience, this court has consistently refused to extend the authority of the precedent to any case other than such as involved a county bridge. The statutes which defined the scope of authority and duty of the board of supervisors in respect to public highways were not materially changed from the time of the rendering of the decision in the Wilson case until the year 1913. The latter year marks the beginning of a new era in road legislation in this state. The new legislation thus inaugurated has circumscribed and qualified to a considerable extent the power of the board of supervisors in relation to roads, including bridges, and has subjected the board to the supervision and direction of higher authority. The question confronting us now is whether the new legislation has so undermined the ground upon which the Wilson decision was made to rest that the decision itself has thereby ceased to be authority as a precedent. We have not heretofore had occasion to consider the question in this form. Our first contact with the new legislation was in Snethen v. Harrison County, 172 Iowa 81, 152 N.W. 12. In that case, the point was made for the plaintiff that the effect of the new legislation was to extend the field of liability of the county for damages for all defective road improvement work done by the board of supervisors under the power of the statute. The argument was that, under the decision in the Wilson case, the field of the liability of the county was as broad as the field of the duty of the supervisors, and that such case became, therefore, a binding precedent upon the court for recognition of damages for delinquencies of duty other than those pertaining to a county bridge. We refused to extend the authority to the Wilson case as a precedent in any degree. This refusal was based largely upon the ground that the Wilson case was unsound in principle, and therefore incapable of general application; that the rule of liability created by it was an exception to the general rule of nonliability of counties for the negligence of their officials; and that such exception would not be enlarged beyond its original application to county bridges. This holding was reaffirmed by us in Gibson v. Sioux County, 183 Iowa 1006, 168 N.W. 80; Cunningham v. Adair County, 190 Iowa 913; Smith v. Jones County, 190 Iowa 1041, 181 N.W. 264.

None of these later cases here cited involve the question of liability for a defective county bridge. We have had no occasion, therefore, to consider the question of what effect our later legislation has had upon that question. We guarded the question against any prejudgment in our discussion, but we had no occasion to pass affirmatively thereon. The question is now distinctly before us. Under the present state of our legislation, can it be said that the general rule of nonliability of counties for damages for the negligence of its officials is subject to the exception created by the holding in the Wilson case? In other words, has the authority of the Wilson case as a precedent been superseded as a result of our recent legislation which subordinates the powers and duties of the board of supervisors to the direction and supervision of higher authority?

The general purport of the new highway legislation is to unify the development and improvement of the highways of the state into one general and consistent scheme. This scheme contemplates a division of the burden, as between county and township and state and Federal government. The supreme administrative authority is retained by the state, and is exercised through its duly appointed officials, the state highway commission. The local administrative authority is vested largely in the board of supervisors, and to some extent in the township trustees. All acts of the board of supervisors are submitted to the advance approval of the highway commission. While power is conferred upon the boards to build bridges in their respective counties, yet this power is subordinated to the supervision of the highway commission and must be exercised pursuant to plans and specifications furnished by such commission. The roads of a county are classified as primary and secondary, and as county and township. But the supreme authority in the classification is the highway commission of the state, and not the board of supervisors. This classification is adopted for the purpose of establishing respective priorities in the development of the roads and in the expenditure of the public funds, and for the purpose also of acquiring uniformity and connection of highways as between adjoining counties. The duties cast upon the board of supervisors are to construct all bridges and all permanent culverts within its county, whether upon county road or upon township road. The designation of a road as a county road has no other significance than that the improvement of such road will take priority in time over that of a township road. This priority, however, does not wholly exclude improvement upon township roads nor necessarily delay the building of necessary bridges upon township roads. When built, they are so built by the board of supervisors, subject to the supervisors of the highway commission. Under the new scheme, therefore, there is a sense wherein all bridges and permanent culverts in the county, whether on county or township roads, are county bridges. In a sense, also, there are no county bridges, within the meaning of the law as it was prior to 1913. In other words, it may be said with equal plausibility that all bridges are county bridges under the new law, and that none are county bridges within the meaning...