Shearer v. Hall

• Decision Date: 12 November 1965
• Citation: 399 S.W.2d 701
• Parties: James E. SHEARER et al., Appellants, v. James A. HALL, Jr., et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 701

399 S.W.2d 701

James E. SHEARER et al., Appellants, v. James A. HALL, Jr., et al., Appellees.

Court of Appeals of Kentucky.

Nov. 12, 1965.

As Modified on Denial of Rehearing March 25, 1966.

Anthony R. Hellmann, Louisville, for appellants.

William H. Hays, Ralph Mitchell, Shelbyville, Oldham Clarke, Louisville, George F. Williamson, James A. Hall, Jr., LaGrange, for appellees.

HILL, Judge.

This is an appeal from an order dismissing appellants' complaint for failure to state a cause of action.

On December 27, 1962, appellants, James E. Shearer, his wife and infant children, were passengers in an automobile being driven across a bridge spanning Floyds Fork Creek on Todds Point Road. The bridge collapsed injuring appellants. Floyds Fork Creek at the location of the bridge is the boundary line between Shelby and Oldham Counties. The bridge has been maintained jointly for some years by the two counties. This action seeks damages for injuries claimed to have been received in the collapse of the bridge.

The defendants, with the exception of B. M. Johnson, are the members of the fiscal courts of the two counties as individuals and as members of the fiscal courts of their respective counties. Johnson is the road engineer of Shelby County.

Neither Shelby nor Oldham County is made a party defendant, although the complaint names the 'Shelby County Fiscal Court' and the 'Oldham County Fiscal Court' as parties, in addition to naming the members of the two fiscal courts in their individual capacities. Counsel for defendants did not raise the question that the two counties were not made parties until the filing of appellees' brief in this Court. Apparently the trial court treated the two counties as having been properly joined as defendants when it referred in the judgment to 'sovereign immunity,' and in citing Carr v. Jefferson County, 275 Ky. 685, 122 S.W.2d 482 (1938). Nevertheless, the counties were not made defendants. In Howell v. Haney, Ky., 330 S.W.2d 941 (1960), it was held that joining the individual members of the board of education and members of the fiscal court did not operate to join the board of education and the county in their capacities as quasi corporations.

Appellants contend the counties are 'estopped' on this appeal to raise this question for the first time. With this we do not agree.

This question should not be confused with the situation where an 'issue' not raised by the pleadings, but tried by expressed or implied consent, is treated in all respects as if it had been raised in the pleadings under CR 15.02.

Consequently, with the two counties out of the picture, our inquiry concerns the sufficiency of the allegations of the complaint as to the defendants in their individual capacities.

Following are the pertinent allegations of the complaint:

(1) '(B)ecause of the negligence and carelessness of the aforesaid defendants, jointly and severally, and as a direct cause thereof, said bridge collapsed; that the defendants knew or by the exercise of ordinary care, should have known the dangerous condition of said bridge and should have warned the public thereof and particularly these plaintiffs * * *.'

(2) '11. Plaintiffs further state that pursuant to Chapters 67, 178 and 179 of the Kentucky Revised Statutes, it was the duty of the defendants to repair and maintain said bridge for the safety of the public and these plaintiffs, and that the defendants willfully and wantonly failed to do so.'

A wanton act is an unrestrained act. Gross negligence is the failure to exercise slight care. Chesapeake & O. Ry. Co. v. Dodge, 66 S.W. 606, 23 Ky.Law Rep. 1959; Louisville & N. R. Co. v. Roth, 130 Ky. 759, 114 S.W. 264 (1908); Louisville & N. R. Co. v. Smith, 135 Ky. 462, 122 S.W. 806 (1909).

In determining the sufficiency of pleadings, we are met at the threshold by CR 8.01 providing for '(1) a short and plain statement of the claim showing that the pleader is entitled to relief.' Clay's Kentucky Practice, volume 6, page 128, thus defines the purpose of pleadings:

'The purpose of this Rule is to assign to pleadings the function of giving notice and formulating true issues without the requirement that they detail every fact which in the past may have been necessary to constitute a formal 'cause of action' or a defense. The common law concept of pleading to an issue is completely abandoned.'

This brings us to the troublesome question, are public officials personally liable for negligence or 'wanton' failure to perform their official duties? Those duties as they relate to members of the fiscal court are thus defined in KRS 67.080: 'The fiscal court may: * * * (5) Erect, keep in repair and superintend bridges and other structures; * * * (9) Provide for the good condition of the highways in the county.' The duties of the defendant Johnson, as county road engineer, are defined in KRS 179.200 in these words: '(1) Every six months, and at such other times as the fiscal court directs, the county engineer shall inspect, or cause to be inspected, the county roads and bridges within the county.'

In addition to the foregoing statutes relative to the duties of defendants, section 227 of the Constitution of Kentucky provides: 'Judges of the County Court, Justices of the Peace, * * * shall be subject to indictment or prosecution for misfeasance or malfeasance in office, or willful neglect in discharge of official duties, in such mode as may be prescribed by law * * *.' Following the guidelines of this section of the Constitution, the Legislature enacted KRS 61.170 which provided that justices of the peace and other named officers may be indicted for malfeasance or misfeasance in office or willful neglect in the discharge of official duties.

Appellees contend the use of the word 'may' in connection with the duties of justices of the peace vests in such officers a discretion to act; and, unless there is a mandatory provision in the statute requiring the performance of a duty, no civil liability is imposed. Numerous cases are cited, including Wheatly v. Mercer, 72 Ky. 704 (1873), Hardwick v. Franklin, 120 Ky. 78, 85 S.W. 709 (1905), Sinkhorn v. Lexington, H. & P. Turnpike Road Co., 112 Ky. 205, 65 S.W. 356 (1901).

In the light of more recent, cases, to which we later refer, we think by the use of the word 'may' in KRS 67.080 the Legislature clearly intended not only to empower the fiscal courts to repair and keep in good condition the roads and bridges, but by implication they are placed under the duty to exercise some degree of care and diligence in the performance of such duties. The pleading in question not only charges failure to exercise ordinary care, but alleges defendants willfully and wantonly failed to perform the duties required of them by law and referred to specifically in the statutes quoted above.

The general rule concerning personal liability of public officers for injuries resulting from defective highways is stated in 25 Am.Jur., Highways, section 604, page 889, as follows: 'According to the majority rule, a public officer is liable for personal injuries resulting from his negligence, where the duty imposed on him of keeping the streets or highways in repair is ministerial or mandatory in character, and not judicial or discretionary.'

For a definition of 'ministerial' act as distinguished from a 'discretionary' one, we quote the following from Upchurch v. Clinton County, Ky., 330 S.W.2d 428, 430 (1959):

'The essentials of a ministerial as contrasted with a discretionary act are thus set forth in 43 Am.Jur., Public Officers, sec. 258, p. 75: 'An official duty is ministerial when it is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts; that a necessity may exist for the ascertainment of those facts does not operate to convert the act into one discretionary in its nature. Discretionary or judicial duties are such as...