Savage v. City of Tulsa, Case Number: 23547
| Decision Date | 29 October 1935 |
| Docket Number | Case Number: 23547 |
| Citation | 1935 OK 1058,50 P.2d 712,174 Okla. 416 |
| Parties | SAVAGE v. CITY OF TULSA |
| Court | Oklahoma Supreme Court |
¶0 Municipal Corporations--Liability for Acts of Officers Dependent on Whether Such Acts Were in Exercise of City's Governmental Powers or Proprietary Powers.
A city has two classes of powers--the one legislative, public, governmental, in the exercise of which it is a sovereignty and governs its people; the other proprietary, quasi private, conferred upon it, not for the purpose of governing its people, but for the private advantage of the inhabitants of the city and of the city itself as a legal personality. In this state and in most others distinction is made between the liability of a municipal corporation for the acts of its officers in the exercise of powers of a governmental nature, which it possesses for public purposes, which it holds in the exercise of its sovereignty and governs its people, and those acts of its officers in the exercise of powers, proprietary in their nature, and which are exercised not for the purpose of governing its people, but for the private advantage of the municipality and its inhabitants, of the former the city is not liable, of the latter it is liable.
2. Same--City Held not Liable to Prisoner Injured While Working on Streets.
It affirmatively appearing that the defendant, municipal corporation, was engaged in the performance of a governmental function in working a prisoner upon its streets, the court committed no error in sustaining the demurrer of the defendant to the petition of the plaintiff.
Appeal from District Court, Tulsa County: Thurman S. Hurst, Judge.
Action by Louis Savage against the City of Tulsa. Judgment for defendant, and plaintiff appeals. Affirmed.
Bailey E. Bell, W. Cliff Klein and Gerald B. Klein, for plaintiff in error.
H. O. Bland, City Atty., Bert E. Johnson, O. H. Searcy, C. L. Hamilton, and Edna Claire King, for defendant in error.
¶1 The plaintiff in error, Savage, files this action against the defendant in error, municipal corporation, city of Tulsa, Okla., and from an adverse ruling sustaining the demurrer of the city of Tulsa to his petition, prosecutes this appeal, assigning as error such ruling and the dismissal of his action with prejudice. The parties will be referred to as they appeared in the lower court.
¶2 The plaintiff alleged in substance that he was convicted and placed in the Tulsa city jail to serve out a fine of $ 10; that thereafter he was advised that if he would work on the streets of Tulsa, he would receive credit on his fine of two days for each day served and shorten his imprisonment' that he consented, and under the control and direction of the officers, agents, and employees of the city of Tulsa, engaged in painting street markers, stop signs, and other street painting. also, maintenance work for such city upon its streets, that at the particular time complained of, plaintiff and other prisoners were engaged in painting the lines from one sidewalk across to the other, across the four streets at a street intersection, and painting the stop signs there, and plaintiff was engaged in the painting of a sign in the middle of the street, and while in a stooped position was struck by an automobile, driven by an unidentified driver, causing plaintiff certain permanent injuries.
¶3 He further avers that the city was negligent in failing to provide adequate safeguards or warnings, affording protection or warning approaching motorists of the presence of plaintiff, and that such negligence was the proximate cause of the injury, and prays judgment against the defendant, municipal corporation.
¶4 It is the contention of the plaintiff that the city of Tulsa, in employing him in the maintenance of its streets and in the performance of the kind and class of work in which plaintiff was engaged, was in the exercise of its corporate function, and that the law of master and servant or respondeat superior applies. On the other hand, the defendant, city of Tulsa, insists that it was in the performance of its governmental function and not liable for the injuries sustained by the plaintiff on account of the alleged negligence of its officers.
¶5 It is well settled that if the petition of the plaintiff discloses a set of facts which would constitute a defense to plaintiff's cause of action, such question may be raised by demurrer.
¶6 The powers of a city such as defendant, municipal corporation, have been defined to be of two classes. This distinction or classification was noted in the case of Illinois Trust & Savings Bank v. Arkansas City, 76 F. 271, 22 C. C. A. 171, 34 L. R. A. 518, wherein it was held:
"A city has two classes of powers--the one legislative, public, governmental, in the exercise of which it is a sovereignty and governs its people; the other proprietary, quasi private, conferred upon it, not for the purpose of governing its people, but for the private advantage of the inhabitants of the city and of the city itself as a legal personality."
¶7 In the case of Fretz v. City of Edmond, 66 Okla. 262, 168 P. 800, and City of Shawnee v. Roush, 101 Okla. 60, 223 P. 0,354, this court quoted and approved the rule announced in the above case and has announced a similar rule in a number of decisions. City of Lawton v. Harkins, 34 Okla. 545, 126 P. 727; Oklahoma City v. Foster, 118 Okla. 120, 247 P. 80; Oklahoma City v. Haggard, 170 Okla. 473, 41 P.2d 109.
¶8 In this state, as in most others, the distinction is made between the liability of a municipal corporation for the acts of its officers in the exercise of powers of a governmental nature, which it possesses for public purposes, which it holds in the exercise of its sovereignty and governs its people, and those acts of it in the exercise of powers, proprietary in their nature and which are exercised, not for the purpose of governing its people, but for the private advantage of the municipality and its inhabitants. Of the former the city is not liable, of the latter it is liable. City of Lawton v. Harkins, supra; City of Shawnee v. Roush, supra; Oklahoma City v. Foster, supra; and Oklahoma City v. Haggard, supra.
¶9 The proper application of these rules would determine the question here involved. The petition shows upon its face the corporate character of the defendant, the conviction of plaintiff and his confinement, and the placing of plaintiff on the streets of the city of Tulsa, before his fine was paid or served, and his employment in painting the markers at a street intersection, with the resulting injury.
¶10 Section 3159, O. S. 1931, is as follows:
"Any court, justice of the peace, police court or police magistrate, in cases where such courts have jurisdiction under the laws of this state, or as provided by the ordinances or charter of any incorporated town or city in the state, shall have full power and authority to sentence such convict to hard labor as provided in this article."
¶11 Article 2, section 3, paragraph 27, of the charter of the city of Tulsa, provides that the city of Tulsa shall have the power, "to provide workhouses for vagabonds and disorderly persons, who are unable, or refuse to pay fines, or who have been sentenced to fine and imprisonment, or to compel them to work on the streets, alleys and public works, and make all necessary regulation concerning the same, and to provide, keep and regulate a city prison."
¶12 The plaintiff cites a number of cases bearing upon the liability of municipalities, to the effect that a city in maintaining its streets acts in a proprietary or private capacity, and while so acting is generally held liable for the negligence or wrongful acts of its officers in such matter, and reasons that since the kind of work being performed by the plaintiff was such that would be performed in its corporate capacity, it is therefore liable for the negligence of its officers. though police officers, in that such police officer at such time is a servant of the municipality in its corporate capacity.
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