Schnurr v. Bd. of Com'rs of Huntington Cnty.

• Decision Date: 07 April 1899
• Citation: 53 N.E. 425,22 Ind.App. 188
• Parties: SCHNURR et al. v. BOARD OF COM'RS OF HUNTINGTON COUNTY et al.
• Court: Indiana Appellate Court

22 Ind.App. 188

53 N.E. 425

SCHNURR et al.

v.BOARD OF COM'RS OF HUNTINGTON COUNTY et al.

Appellate Court of Indiana.

April 7, 1899.

Appeal from circuit court, Huntington county; C. W. Watkins, Judge.

Action by Peter Schnurr and others against the board of commissioners of Huntington county, the city of Huntington, and others. To the complaint the several defendants demur, and from rulings sustaining the demurrer the plaintiffs appeal. Affirmed.

Ibach & Ibach and B. M. Cobb, for appellants. Whitelock & Cook and France & Dungan, for appellees.

ROBINSON, J.

Appellants' complaint avers that appellee board undertook to construct a sewer from the court house to connect with a sewer of the city of Huntington, with the city's consent, and employed an irresponsible and incompetent person, without bond, to do the work; that the board knew that, in doing the work, it would be necessary to use explosives to blast rock through which the sewer was to be built; that, in doing the work, the workmen, by negligently and carelessly blasting rock, damaged appellants' building. The individual members of the board and the city of Huntington were made defendants. Demurrers by the several defendants were sustained, and these rulings are assigned as errors.

The complaint is bad as against the city, which was simply a licensor. The work was not necessarily dangerous, but became dangerous through the manner in which it was done by a party over whom the city had no control whatever. The complaint does not show that the act authorized by the city was intrinsically dangerous. Wheeler v. City of Plymouth, 116 Ind. 158, 18 N. E. 532;City of Warsaw v. Dunlap, 112 Ind. 576, 11 N. E. 623, and 14 N. E. 568.

The demurrer of the individual members of the board was properly sustained. The complaint shows that the contractor's neglect was the sole and only cause of the injury. It is not shown that anything that the individual members of the board did or neglected to do brought about, or contributed to bring about, the injury. Besides, the injury resulted from the conduct of an independent contractor, who was not even in the employ of the individual members of the board, but of the board as a corporation. See Rolling Mill v. Cooper, 131 Ind. 368, 30 N. E. 294;Water-Supply Co. v. White, 124 Ind. 376, 24 N. E. 747;Railway Co. v. Farver, 111 Ind. 195, 12 N. E. 296;Zimmerman v. Baur, 11 Ind. App. 607, 39 N. E. 299;Newman v. Sylvester, 42 Ind. 106.

Nor does the complaint state a cause of action against the board of commissioners. The prevailing rule is that except as imposed by statute, expressly or by necessary implication, a county is not liable in respect of torts. The reason for the rule is that a county is a political subdivision of the state, for the convenience of government, and the same exemption from liability that is applied to the state is extended to the county, as a political subdivision of the state. See Board v. Daily, 132 Ind. 73, 31 N. E. 531;Board v. Rickel, 106 Ind. 501, 7 N. E. 220;White v. Board, 129 Ind. 396, 28 N. E. 846;Summers v. Daviess Co., 103 Ind. 262, 2 N. E. 725;Board v. Boswell, 4 Ind. App. 133, 30 N. E. 534; Rob. Co. & Tp. Off. § 21. The principle is well settled that an action will not lie against a county for an injury received by one on account of the negligence of a county officer, unless a right of action is expressly given by statute. See Board v. Allman, 142 Ind. 573, 42 N. E. 206, and cases there cited. The work which the board had employed the contractor to do was not in itself unlawful, nor was it intrinsically dangerous; nor was the doing of such work in a public street necessarily a nuisance. Injury...