Shaw v. City of Charleston

• Decision Date: 21 March 1905
• Citation: 50 S.E. 527,57 W.Va. 433
• Parties: SHAW v. CITY OF CHARLESTON.
• Court: West Virginia Supreme Court

50 S.E. 527

57 W.Va. 433

SHAW v. CITY OF CHARLESTON.

Supreme Court of Appeals of West Virginia.

March 21, 1905

Submitted March 1, 1905.

Syllabus by the Court.

1. A municipal corporation is not liable for injuries to a person occasioned by the unsanitary condition of its prison while he is confined therein for violation of a city ordinance.

2. The maintenance of a prison is the exercise of a purely governmental power, and a municipal corporation is not liable for injuries caused by negligence or omission of duty on the part of its officers and agents respecting its prison or persons confined therein.

3. A father cannot maintain an action in his own right for damages on account of the negligent killing of his child.

Error to Circuit Court, Kanawha County; Wm. G Mathews, Special Judge.

Action by C. H. Shaw against the city of Charleston. Judgment for defendant, and plaintiff brings error. Affirmed.

Jas. P Ferguson, for plaintiff in error.

H. D Rummell, for defendant in error.

POFFENBARGER J.

The circuit court of Kanawha county sustained a demurrer to a declaration in an action of trespass on the case brought by G. H. Shaw against the city of Charleston, charging that, by reason of the wrongful and negligent acts of said city, it had caused the death of the plaintiff's son, a child about seven years old, by causing him to be incarcerated in its filthy and unsanitary city prison. To the judgment dismissing the action the plaintiff, Shaw, obtained a writ of error.

The case is ruled by the general principles of law announced by this court in the cases of Brown's Adm'r v. Town of Guyandotte, 34 W.Va. 299, 12 S.E. 707, 11 L.R.A. 121; Gibson v. Huntington, 38 W.Va. 177, 18 S.E. 447, 22 L.R.A. 561, 45 Am.St.Rep. 853, and Bartlett v. Town of Clarksburg, 45 W.Va. 393, 31 S.E. 918, 43 L.R.A. 295, 72 Am.St.Rep. 817. In Gibson v. Huntington the classes of cases in which municipal corporations are liable for injuries are summarized as follows: First, failure to keep its streets, alleys sidewalks, roads, and bridges in repair; second, injuries inflicted in the discharge of purely ministerial duties, not governmental or discretionary in character; third, injuries caused by the negligent management of its corporate property. In the same case it is held that "a municipal corporation is not liable for injuries caused by the negligence of its agents and officers in the discharge of or omission to discharge duties which are purely governmental or discretionary." In Bartlett v. Town of Clarksburg the court said: "As to the powers and functions of an incorporated town of a public governmental character, it is not liable for damages caused by the wrongful acts or negligence of its officers or agents therein." Brown's Adm'r v. Town of Guyandotte is a case exactly in point, holding that "a town is not liable for damages for the death of a person caused by the burning of its jail while such person was confined therein by town authority for a violation of its ordinances, though such fire was attributable to the wrongful act or negligence of the officers or agents of the town." Richmond v. Long's Adm'rs, 17 Grat. 375, 94 Am.Dec. 461, held the city of Richmond not liable for the loss of a slave admitted into the city hospital as a smallpox patient, whose death resulted from the negligence of the agent of the city in allowing him to escape and freeze to death. The principles announced in these last two cases, directly applicable to the case in hand, are so well supported by reason and authority that it is deemed useless to consume time in a re-examination of them. They are supported by the great weight of authority. Some cases holding a contrary doctrine will be found in the Reports, but the reasons assigned for it are wholly unsatisfactory. Such is the case of Edwards v. Pocahontas (C. C.) 47 F. 268, which attempts to mark a distinction in this respect between cities and towns, on the one hand, and counties, on the other, in respect to liability, on the ground that cities and towns voluntarily assume legislative power, while counties do not. How a difference in the method by which the two classes of corporations obtain the legislative power vested in them can change the character of that power, and impose liability for its negligent exercise, when the Legislature has not expressly provided for such liability, is not apparent on the face of the proposition, and the reasons assigned in the few isolated cases asserting the doctrine are wholly unsatisfactory. The right of action for injuries occasioned by defects in streets, sidewalks, alleys, and bridges, recognized by the courts, in no manner argues the...