Shepherd v. City of Chattanooga

• Decision Date: 30 November 1934
• Citation: 76 S.W.2d 322,168 Tenn. 153
• Parties: SHEPHERD v. CITY OF CHATTANOOGA.
• Court: Tennessee Supreme Court

76 S.W.2d 322

168 Tenn. 153

SHEPHERD v. CITY OF CHATTANOOGA.

Supreme Court of Tennessee.

November 30, 1934

Appeal in Error from Circuit Court, Hamilton County; Oscar Yarnell Judge.

Action by Allen Shepherd against the City of Chattanooga. From a judgment sustaining a demurrer to the declaration, plaintiff appeals in error.

Reversed and remanded.

Rankin Frazier & Roberts, of Chattanooga, for plaintiff in error.

J. W Anderson, of Chattanooga, for defendant in error.

SWIGGART Justice.

Plaintiff's declaration was held not to state a right or cause of action against the city, on demurrer, and he has appealed in error.

The suit is for damages for personal injuries. Plaintiff avers that, while working on a city street, repairing a curb or surface drain, under the control and orders of the city, he was struck and injured by a piece of metal flying from a sledge hammer which was being used by another employee of the city engaged in the same or similar work; that this hammer was old and worn, was defective and dangerous to use, and was so known to be by the city. The furnishing and use of this defective tool is the negligence relied upon as giving the plaintiff a right of action for damages for his injury.

Plaintiff's counsel recognize that the city is not liable in damages for the negligent tort of its agents and servants, if they were employed and acting in furtherance of the city's public or governmental duty and obligation. But it is contended that in the construction and repair of its streets a city is acting in its corporate or proprietary right, subject to all the consequences arising from the doctrine of respondeat superior. We think this contention must be sustained.

It is the settled law of this jurisdiction that a municipal corporation holds the easements of its streets, in trust, for the benefit of the corporation, with the power to grade, pave, and otherwise improve them, and is liable in damages for injuries caused by its negligent failure to keep them in a safe condition for the use of the public. Mayor, etc., of City of Memphis v. Lasser, 28 Tenn. (9 Humph.) 757; Mayor, etc., of City of Memphis v. Kimbrough, 59 Tenn. (12 Heisk.) 133; Mayor, etc., of City of Knoxville v. Bell, 80 Tenn. (12 Lea) 157; City of Knoxville v. Harth, 105 Tenn. 436, 58 S.W. 650, 80 Am. St. Rep. 901; Mayor, etc., of City of Nashville v. Brown, 56 Tenn. (9 Heisk.) 1, 24 Am. Rep. 289.

The principle of law established by these cases is that the obligation to keep and maintain its streets is one cast upon a municipality in its corporate capacity, and that in the performance of this obligation it does not act as a governmental agency of the state which created it. From this it seems to us to follow logically and necessarily that in the selection and use of the physical means and agencies by which this obligation is to be performed, the municipality is likewise acting in its corporate capacity. We are not able to perceive any basis for the distinction urged upon us by the city, that the act of improving or repairing a street may be a governmental act, or in pursuance of a governmental duty, when done in compliance with a corporate obligation to keep and maintain the street in a safe condition. Saulman v. City of Nashville, 131 Tenn. 427, 175 S.W. 532, L. R. A. 1915E, 316, Ann. Cas. 1916C, 1254.

While the injuries suffered by the plaintiffs in the cases of Mayor, etc., of City of Nashville v. Brown and City of Knoxville v. Harth, cited above, were directly caused by the physical condition of streets, the opinions of the courts sustain our conclusion in this case. In Mayor, etc., of City of Nashville v. Brown the theory of liability stated by the trial judge in his charge to the jury, approved by this court, was that the city was liable for its agent's...