Shirkey v. Keokuk County

• Decision Date: 25 October 1938
• Docket Number: 44022.
• Citation: 281 N.W. 837,225 Iowa 1159
• Parties: SHIRKEY v. KEOKUK COUNTY et al.
• Court: Iowa Supreme Court

281 N.W. 837

225 Iowa 1159

SHIRKEY v. KEOKUK COUNTY et al.

No. 44022.

Supreme Court of Iowa.

October 25, 1938

ANDERSON, J., dissenting.

Appeal from District Court, Keokuk County; P. J. Siegers, Judge.

Action for damages against Keokuk County, the members of the Board of Supervisors of said county, and William Kelly, an employee of said county and the operator of a tractor causing plaintiff's injuries. Separate demurrers were filed by the county, by the members of the Board of Supervisors, and by the defendant William Kelly, the operator of said tractor. All of the demurrers were sustained by the court. Plaintiff elected to stand on her petition, and judgment was entered against her for costs. Plaintiff appeals. Reversed as to appellee Kelly, and affirmed as to appellees Keokuk County and its Board of Supervisors.

Affirmed in part; reversed in part.

For prior opinion, see 275 N.W. 706 C. J Lambert and F. M. Beatty, both of Sigourney, for appellant.

Ralph H. Goeldner, Co. Atty., and Robert J. Shaw, both of Sigourney, for appellees.

KINTZINGER Justice.

This case was originally decided in Shirkey v. Keokuk County et al., Iowa, 275 N.W. 706. A rehearing was granted and the former opinion is hereby withdrawn, except as reaffirmed and modified herein.

The plaintiff Martha Shirkey, appellant, commenced this action against Keokuk County; Ned Wood, J. Forest Embree, and Fred X. Kendall, members of the Board of Supervisors of said county; and against William Kelly, an employee of the defendant county engaged in the operation of a tractor for and on behalf of said county. Plaintiff alleges in her petition:

" 1. That on December 4, 1935, at more than thirty minutes after sunset on said day, plaintiff was riding in a Ford automobile, owned and driven by her husband, on a county road about a mile and a half northwest of Richland, in Keokuk County, Iowa;

2. That the defendant, William Kelly, was an employee of Keokuk County under the direction and control of the defendant Board of Supervisors, and was operating a county tractor on the east or left side of said highway, traveling in a southerly direction;

3. That said Kelly negligently, recklessly, carelessly, unlawfully, and in an incompetent manner, drove or operated said tractor at a high rate of speed, without lights as required by law, on the left or wrong side of the road, when the evening was quite dark, and thereby caused the same to crash into the automobile in which plaintiff was riding; and by reason of such careless, reckless, negligent, unlawful, and incompetent operation of said tractor by said William Kelly, a collision was caused whereby plaintiff was crushed, broken, rendered sick, ill, and disabled, as a result of which plaintiff suffered damages in the sum of $26,446.60."

Three demurrers were filed by the defendants; one by defendant Keokuk County, one by the defendant Board of Supervisors, and one by the defendant William Kelly, the operator of the tractor in question and an employee of the defendant county. Each of these demurrers was sustained by the lower court and judgment entered against plaintiff for costs. Plaintiff appeals.

I.

The facts and the discussion of the law pertaining to the separate demurrers filed by Keokuk County and by the Board of Supervisors of said county are fully set out, considered, and discussed in the opinion in Shirkey v. Keokuk County, Iowa, 275 N.W. 706. The court sustained these two demurrers, and we are satisfied with the court's ruling in so doing and adhere to and reaffirm our former ruling and opinion thereon. The reasons for this court's ruling thereon are fully set out, considered, and discussed in our former opinion. We are satisfied therewith and deem it unnecessary to give them further consideration except by reference thereto. It is therefore our conclusion that there was no error in the lower court's ruling on the separate demurrers of Keokuk County and its Board of Supervisors.

II. The remaining question is whether or not the lower court erred in sustaining the defendant Kelly's demurrer to plaintiff's petition.

Appellees contend that the defendant Kelly, in performing the services in which he was engaged, was in the performance of a governmental function for Keokuk County and that, inasmuch as the county is not liable for its negligence while in the performance of a governmental function, it necessarily follows that its employee who was engaged by the county in the performance of such service is likewise exempt from liability.

Appellant contends that the action of the defendant Kelly constituted an unlawful act amounting to misfeasance and positive negligence on his part for which he is personally liable regardless of his employment by Keokuk County.

The substituted petition alleges: " That the said William Kelly unlawfully and in an incompetent manner drove or operated said tractor * * * by driving it at a high rate of speed for such a vehicle, without lights as required by law * * * and on the * * * left, or wrong side of the road, when the evening was quite dark, and thereby causing the same to crash into the automobile in which plaintiff was riding, and by reason of such careless, reckless, negligent, unlawful, and incompetent operation of said tractor * * * by said William Kelly, a collision was caused whereby plaintiff was crushed, broken, rendered sick, ill, and disabled."

The demurrer to this petition admits these facts, and the question for consideration therefore is whether or not the defendant, William Kelly, for his own recklessness, negligence, and unlawful acts can be held liable for the injuries caused by him, notwithstanding his employment by Keokuk County.

Appellees contend that the defendant Keokuk County, in the performance of the work being done by and through its employee, the defendant William Kelly, was engaged in the performance of a governmental function by reason of which neither the defendant county nor its employee, William Kelly, is liable for the acts complained of. Appellees also contend that under the doctrine announced in Hibbs v. Independent School District, 218 Iowa 841, 251 N.W. 606, and other like cases referred to in Shirkey v. Keokuk County et al., Iowa, 275 N.W. 706, there can be no liability on the part of the defendant Kelly, because Kelly was engaged in the performance of a governmental function for Keokuk County.

Since the rendition of the opinion in the Hibbs Case, and since the rendition of the original opinion in Shirkey v. Keokuk County et al., Iowa, 275 N.W. 706, this court, in a well considered opinion in the recent case of ...