Schwalk's Admr. v. City of Louisville

• Citation: 135 Ky. 570
• Parties: Schwalk's Adm'r v. City of Louisville
• Decision Date: 01 December 1909
• Court: Kentucky Court of Appeals

Page 570

135 Ky. 570

Schwalk's Adm'r v. City of Louisville

Court of Appeals of Kentucky.

December 1, 1909.

Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division).

THOS R. GORDON, Judge.

Judgment for defendant, plaintiff appeals. — Affirmed.

BENNETT H. YOUNG and MARION W. RIPY for appellant.

HUSTON QUINN for appellees.

CLAYTON B. BLAKEY and ELMER C. UNDERWOOD of counsel.

OPINION OF THE COURT BY JUDGE SETTLE — Affirming.

On August 30, 1906, Simon J. Schwalk lost his life while going to some part of the city hall in Louisville upon an elevator used in the building. The city hall is owned by the appellee, city of Louisville, and practically the whole of the city's business is conducted within its walls.

The appellant, Columbia Finance & Trust Company, was appointed and duly qualified as administrator of Schwalk's estate, and on March 27, 1907, instituted this action in the court below to recover of the appellee city damages for his death; it being, in substance, alleged in the petition as finally amended that the death of its intestate was caused by the negligence of appellee, its agents, and servants in failing to maintain the elevator in a reasonably safe condition for use, and in permitting it to be operated by an inexperienced and incompetent negro boy. After the petition had been twice amended, the circuit court sustained a demurrer to it, and, appellant refusing to plead further, judgment was rendered dismissing the action. Appellant's dissatisfaction with that ruling and judgment resulted in this appeal.

The judgment of the circuit court is bottomed upon the theory that the duty of the city of Louisville to provide and maintain a city hall for the use of its officers and agents and as a place for transacting its business affairs is a public and governmental duty and obligation for the negligence of its agents and servants, in the performance of which the city is not liable in an action for damages. This court is fully committed to the doctrine thus announced. As said in Taylor v. Owensboro, 98 Ky. 271, 32 S. W. 948, 17 Ky. Law Rep. 856, 56 Am. St. Rep. 361: "Municipal governments are auxiliaries of the state government. They are created principally to aid in securing a proper government of the people within the boundaries of such municipalities, and to make more effectual the maintenance of public order." Louisville Bridge Co. v. City of Louisville, 81 Ky. 189; 5 R. 16; City of Louisville v. Commonwealth, 1 Duv. 295, 85 Am. Dec. 624.

The Constitution of the state gives full recognition to municipal corporations, and that they are to be treated as parts of the governmental machinery and necessary auxiliaries in carrying out the ends of government. Under section 170 of the Constitution, which declares that "public property used for public purposes" shall be exempt from taxation, it has been held by this court that waterworks, a park, public wharf, and even bonds owned by a city and applied exclusively to governmental or public uses cannot be subjected to taxation. City of Louisville v. Commonwealth, 1 Duv. 295, 85 Am. Dec. 624; City of Owensboro v. Commonwealth, 105 Ky. 344, 49 S. W. 320, 20 Ky. Law Rep. 1281, 44 L. R. A. 202; Board of Councilmen City of Frankfort v. Commonwealth, 94 S. W. 648, 29 Ky. Law Rep. 699; Commonwealth v. City of Covington, 128 Ky. 36, 107 S. W. 231, 32 Ky. Law Rep. 837, 14 L. R. A. (N. S.) 1214. Under the rule stated by the foregoing authorities, appellee's city hall is exempt from taxation. As the maintenance of a city hall for the use of the court, officers, and employes of a municipality, as well as for the transaction of its business, is but the exercise of a purely governmental function, it would seem to follow that the city cannot be held liable for acts of negligence on the part of its officers or agents engaged in its work or business therein.

The general rule on this subject is well stated in Burdick's law of Torts as follows: "Nonliability of City — There is a substantial agreement that it is not liable for the torts of its fire or police departments, nor for those of its boards of health or education; nor for those of any other officers, agents, or servants in the discharge of functions which primarily belong to the state, but the performance of which it has delegated to the municipality. Neglect of officers in guarding prisoners, or in caring for jurymen, or in keeping courthouses, townhouses, jails, or other public buildings in repair, will not subject the corporation to legal liability. Nor will the negligence of an employe of a charity hospital render the city which maintains it, liable to damages." The doctrine thus stated by Burdick has been applied by this court to relieve cities and towns of responsibility for the torts or negligence of their agents in the following cases: Twyman's Adm'r v. City of Frankfort, 117 Ky. 518, 78 S. W. 446, 25 Ky. Law Rep. 1620, 64 L. R. A. 572; Pollock's Adm'r v. City of Louisville, 13 Bush, 221, 26 Am. Rep. 260; Jolly's Adm'r v. Hawesville, 89 Ky. 279, 12 S. W. 313, 11 Ky. Law Rep. 477; Prather v. Lexington, 13 B. Mon. 559, 56 Am. Dec. 585; Having v. Covington, 78 S. W. 431, 25 Ky. Law Rep. 1617; Ernst v. Covington, 116 Ky. 850, 76 S. W. 1089, 25 Ky. Law Rep. 1027, 63 L. R. A. 652, 105 Am. St. Rep. 241; Clark v. Nicholasville, 87 S. W. 300, 27 Ky. Law Rep. 974; Jones v. City of Corbin, 98 S. W....