Rowley v. City of Cedar Rapids
| Decision Date | 08 February 1927 |
| Docket Number | 37681 |
| Parties | MAYME ROWLEY, Appellant, v. CITY OF CEDAR RAPIDS et al., Appellees |
| Court | Iowa Supreme Court |
REHEARING DENIED JULY 1, 1927.
Appeal from Linn District Court.--F. L. ANDERSON, Judge.
Action at law against the city and one of its commissioners for damages for personal injuries received by plaintiff when she was struck by an automobile alleged to have been operated under the personal direction of the defendant commissioner. Separate demurrers to the petition interposed by the defendants were sustained, and the petition dismissed. The plaintiff appeals.--Affirmed in part; reversed in part.
Affirmed in part; reversed in part.
Johnson Donnelly & Lynch, for appellant.
Charles Penningroth and George E. Farmer, for appellee City of Cedar Rapids.
Grimm Wheeler & Elliott, for appellee J. D. Kennedy.
OPINION
The petition alleged that the plaintiff, while in the exercise of due care, was struck and injured by an automobile operated on the streets of the defendant city. It was alleged that the defendant Kennedy was one of the councilmen and commissioners of the city, in charge of the department of parks and public property; that the automobile belonged to, and was being driven at the time of the accident by, one Cary, who was employed by the city in the city garage; that the car was kept at the city garage, and was frequently used by the officers and agents of the city, and that the city furnished the gasoline for its operation when it was so used; that, at the time of the accident, the defendant Kennedy had been at the city garage, looking after the business and affairs of the city, and at his request and direction, was being transported to the city hall, where he desired then to go, to look after other city business; that the car was entirely subject to the control and direction of the defendant Kennedy, both as to the manner of operation and the route taken. It was alleged that the driver was incompetent, and that such fact was known to the defendants, and that the driver was guilty of specific acts of negligence, resulting in the injuries of which the plaintiff complained.
The demurrers presented the question that the pleaded facts did not entitle the plaintiff to the relief demanded, in that it was alleged that the defendant Kennedy was in the discharge of his duties as commissioner in charge of the department of parks and public property, and that neither the city nor such officer would be liable for injuries sustained through the negligence of agents of the city while engaged in a governmental activity and in performing a governmental function of the city.
I. With respect to its liability for the negligence of its officers or employees, a city acts in a dual capacity. Generally speaking,--for it is frequently said that no exact definition is possible,--it acts, on the one hand, in a governmental capacity, in control and government of its inhabitants, by virtue of the authority of sovereignty delegated to it by the state. For negligence of its officers and employees in the exercise of this governmental function it is not liable. It also acts in a corporate or quasi private capacity for the private advantage of inhabitants of the city, and for the city itself, in the exercise of a ministerial or proprietary function, and in such case is liable, under the doctrine of respondeat superior, for the negligent acts of its servants and employees. Hines v. City of Nevada, 150 Iowa 620, 130 N.W. 181; Bradley v. City of Oskaloosa, 193 Iowa 1072, 188 N.W. 896; Incorporated Town of Sibley v. Ocheyedan Elec. Co., 194 Iowa 950, 187 N.W. 560; Miller Grocery Co. v. City of Des Moines, 195 Iowa 1310, 192 N.W. 306; Norman v. City of Chariton, 201 Iowa 279, 207 N.W. 134; Harris v. City of Des Moines, 202 Iowa 53, 209 N.W. 454.
The petition states only that the defendant Kennedy was, at the time of the accident, being transported from one point, where he had been looking after the city's business and affairs, to another point, where he was to look after other city business. The nature of the business upon which he was employed is not otherwise disclosed. There is nothing to indicate that the business related to the exercise of a ministerial, rather than a governmental, function of the municipality, or even that it related to the department of parks and public property, of which he was in charge. If an inference should be indulged that it did so relate to such department, it would still be quite inconclusive; for it is obvious that the head of that department might do many things in relation to the city's property that would be an exercise of the city's ministerial function and many things in respect to its parks that would be governmental in character. Norman v. City of Chariton, supra. There is nothing in the use of the word "business" itself from which any conclusion in that respect can be drawn. In its broader sense, it means that which engages time, attention, or labor. In a restricted sense, it may denote an occupation or employment for gain. It utterly fails, even as a mere colloquialism, to distinguish an act performed in the exercise of a ministerial function from one that is governmental in character.
Unless it can be said that the plaintiff was required to do no more, in order to state a good cause of action against the city, than to allege that its officer or employee whose negligence was charged was acting for the city and within the scope of his duty or employment, and that the fact that such officer or employee was in the performance of a governmental act was purely defensive, the petition was clearly insufficient, as against the city.
In Jones v. City of Sioux City, 185 Iowa 1178, 170 N.W. 445, where an automobile belonging to, and driven by an employee of, the city caused the death of plaintiff's intestate, the defendant pleaded as an affirmative defense that the city was acting in a governmental capacity in the operation of the car. The testimony on behalf of the plaintiff tended to show that the car was carrying policemen to their beats. We said that the city in so doing was not acting in a governmental capacity. We further said:
This pronouncement does not, however, meet the question here. The matter of pleading was not involved in that case. The defendant was merely held to the burden of introducing evidence of a pleaded affirmative defense. That no question of proper pleading was being determined is apparent from the quoted statement, that, in any event, the plaintiff had made out a prima-facie case.
The precise question now before us was given careful consideration by the court of appeals of Kentucky, in City of Bowling Green v. Bandy, 208 Ky. 259 (270 S.W. 837). The court there said:
"The question is therefore one of practice, i. e., whether it is the duty of the plaintiff in such a case to show by his pleading and establish by his proof a case for which the municipality would be liable; or will it be presumed, in the absence of such allegations, that the case is one for which liability exists and requiring defendant to manifest its non-liability in its answer by averring that the duties of plaintiff when he was injured, and on which he seeks recovery, were being performed as a servant of the city when it was engaged in the performance of a governmental function?"
It was held, in effect, that the petition, which did not allege facts showing that the act complained of was committed in the performance of a ministerial act, was insufficient. The court discussed the case of Jones v. City of Sioux City, supra, pointing out wherein it was deemed not to be controlling on the question.
In City of Tuscaloosa v. Fitts, 209 Ala. 635 (96 So. 771), the court, speaking to the question in hand, said:
The Supreme Court of Oregon, in Caspary v. City of Portland, 19 Ore. 496 (24 P. 1036), after citing authorities to the proposition that, to hold a municipal corporation liable under the doctrine of respondeat superior for the wrongful acts or negligence of an officer, it must appear, among other things,...
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