Shirkey v. Keokuk County
| Decision Date | 26 October 1937 |
| Docket Number | 44022. |
| Citation | 275 N.W. 706,225 Iowa 1159 |
| Parties | SHIRKEY v. KEOKUK COUNTY et al.[a1] |
| Court | Iowa Supreme Court |
Appeal from District Court, Keokuk County; P. J. Siegers, Judge.
A suit to recover damages of defendant Keokuk County, the members of the Board of Supervisors of said county, and the operator of a tractor in use by said county. Separate demurrers were filed by defendants, which were sustained. Plaintiff elected to stand on her petition. Judgment against plaintiff for costs.
Affirmed.
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.
Plaintiff appellant herein, Martha Shirkey, brought suit against Keokuk County, and against Ned Wood, J. Forest Embree, and Fred X. Kendall, members of the Board of Supervisors of said county, and William Kelly. Suit was commenced on the 24th day of November, 1936, and later a substituted petition was filed in said action.
The petition set forth that on December 4, 1935, at more than thirty minutes after sunset on said day, the plaintiff was riding in a Ford V-8 automobile owned and driven by her husband, and traveling north on the county road about one and a half miles northwest of Richland, in Keokuk County, Iowa; that William Kelly, defendant, was an employee of Keokuk County, under the direction of the supervisors, consisting of Wood Embree, and Kendall, and he was driving or operating a tractor on the left or east side of the road traveling in a southerly direction; that Kelly negligently, recklessly, carelessly, and unlawfully, and in an incompetent manner, drove or operated the tractor pulling a maintainer, at a high rate of speed for such a vehicle, without lights as required by law, or without lights being carried or displayed upon said tractor, or upon the maintainer; and in driving on the left side of the road, when the evening was quite dark, and thereby causing the tractor to crash into the automobile in which the plaintiff was riding; and by reason of such careless, reckless, negligent, unlawful, and incompetent operation of said tractor and maintainer by Kelly a collision was caused, whereby plaintiff was crushed, broken, rendered sick, ill, and disabled.
The petition alleged the tractor and maintainer were the property of Keokuk County, and that Kelly was hired by said county and the supervisors thereof to operate said machinery, when he was incompetent and incapable of handling same at the time of the collision; and that it was dangerous to the public for him to be allowed to operate such machinery on the highway, all of which facts were well known to the defendants Wood, Embree, and Kelly, and to Keokuk County and the Board of Supervisors prior to the time Kelly was hired, and prior to the time of the collision.
The petition further set out that the county road referred to was open to traffic by the public; that at the time of the collision the said tractor did not carry and was not equipped with two red danger signals, lanterns, or lights, each capable of remaining continuously lighted for at least sixteen hours; and that at the time of the collision the maintainer was without two red danger signals so displayed, and did not carry, nor was equipped with, any red danger signals, lanterns, or lights, It alleged that the supervisors knew the tractor and maintainer were not equipped with two red lights, each capable of remaining continuously lighted for at least sixteen hours, and knew that said tractor was being frequently operated after sunset and before the next following sunrise upon a public highway open to traffic by the public.
The plaintiff charged the supervisors with knowledge of these things, and alleged that by reason of the careless and incompetent operation of this tractor and the maintainer by Kelly, and, under the direction of the Board of Supervisors, Wood, Embree, and Kendall, plaintiff suffered great injuries. The petition set out items of damage, expenses incurred, and prayed for judgment in the sum of $26,446.60, with interest.
Three demurrers were filed: One demurrer of William Kelly, another demurrer by Keokuk County, and a third demurrer by the Board of Supervisors.
The grounds of the demurrer of Keokuk County were: (1) That it was an attempt to impose civil liability on the defendant Keokuk County for the alleged negligence of a governmental duty, and that the defendant Keokuk County could not be held responsible for the negligence of its officers or employees; (2) that plaintiff was attempting to hold Keokuk County liable for the alleged negligence of its employees and agents in the operation of a tractor and maintainer belonging to and operated on the roads of said county, and was an attempt to hold the defendant county responsible for the performance of a governmental duty imposed by law; (3) that the defendant is a governmental agency and as such is not responsible for the torts of its officers, employees, agents, or servants; (4) that there is no liability fixed by statute on the defendant county for damages in a civil suit as a result of negligence on the part of its officers, employees, agents, or servants; (5) that the defendant Keokuk County is a quasi municipal corporation, and a creature of statute, suable only when statutory provision is given, and that the facts set out in plaintiff's petition do not bring the case within any statute which allows suit against a county, and that there is no statute in this state under which plaintiff may recover from the defendant Keokuk County, for the negligence of its officers or employees while engaged in the maintenance of the public highways; (6) that the facts stated in plaintiff's substituted petition do not entitle her to the relief demanded, or to any relief; (7) that the plaintiff in her substituted petition seeks to impose upon the defendant county a liability which is unknown to the law; (8) that there are no facts set forth in plaintiff's substituted petition that shows Keokuk County was guilty of any negligence for which it could be required to respond in damages to the plaintiff; (9) that there are no facts set forth in plaintiff's substituted petition that show that Keokuk County, or any of its officers or employees, did any act or omitted doing any act which caused damages to plaintiff for which Keokuk County is liable in a civil suit for damages; (10) that the defendant Keokuk County is an involuntary subdivision of the state created by statute for governmental purposes and is immune from civil liability for negligence in the performance of its governmental duties.
The members of the Board of Supervisors filed a demurrer on ten grounds, to wit: (1) That it was an attempt on the part of plaintiff to impose liability on the three supervisors for alleged negligence in the performance of a governmental duty; (2) that there is no liability fixed by statute upon said supervisors for damages in a civil case as the result of alleged negligent operation of a county tractor and road maintainer upon the highways of the county; (3) that the supervisors were officers of Keokuk County, said county being an involuntary territorial and political division of the sovereign state and created by statute for governmental purposes, and that, since Keokuk County is not liable for damages for performing its governmental acts in a negligent manner, it follows as a matter of law that the defendants Wood, Embree, and Kendall, being its officers as members of its Board of Supervisors, cannot be held liable for such alleged negligence; (4) that there is no statute which allows or permits suit against the county or against the individual members of its Board of Supervisors to recover damages against the defendants Wood, Embree, and Kendall for their negligence in the performance of a governmental duty of causing a tractor and road maintainer to be operated upon the roads of the county; (5) that the alleged negligence of the defendants Wood, Embree, and Kendall was in the actual performance of a governmental function imposed by statute and no legal liability attaches therefor; (6) that the facts stated in plaintiff's substituted petition do not entitle the plaintiff to the relief demanded, or to any relief; (7) that plaintiff's substituted petition seeks to impose upon said defendants a liability which is unknown to the law; (8) that there are no facts set forth in plaintiff's substituted petition that show the defendants Wood, Embree, and Kendall are or were in any way guilty of negligence for which they could be required to respond in damages to the plaintiff; (9) that there are no facts in plaintiff's substituted petition that show said defendants did any act or omitted doing any act which caused damage to plaintiff for which said defendants are liable in a civil suit for damages; (10) that Keokuk County is an involuntary subdivision of the state created by statute for governmental purposes and is immune from civil liability for negligence in the performance of its governmental duties, and this immunity extends to its officers, agents, or employees.
The demurrer of William Kelly set forth practically the same grounds as set forth in the demurrer of the supervisors of Keokuk County.
The demurrers came on for hearing, and after argument were submitted to the court, and each and all of said demurrers were sustained, to which plaintiff expected.
The plaintiff elected to stand upon her substituted petition, and on the same day judgment against plaintiff in favor of defendants was entered for costs. Plaintiff excepted. Appeal was served in proper time, and this case is here for hearing on this record.
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