Smith's Adm'r v. Commissioners of Sewerage of Louisville

• Decision Date: 02 February 1912
• Citation: 143 S.W. 3,146 Ky. 562
• Parties: SMITH'S ADM'R v. COMMISSIONERS OF SEWERAGE OF LOUISVILLE.
• Court: Kentucky Court of Appeals

143 S.W. 3

146 Ky. 562

SMITH'S ADM'R v. COMMISSIONERS OF SEWERAGE OF LOUISVILLE.

Court of Appeals of Kentucky.

February 2, 1912

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by William Gibson Smith's Administrator against the Commissioners of Sewerage of Louisville. From a judgment of dismissal, plaintiff appeals. Affirmed.

Eugene R. Attkisson and D. J. Bonner, for appellant.

Trabue Doolan & Cox, for appellee.

MILLER J.

This is an action for damages against the "Commissioners of Sewerage of Louisville," a corporation, for the death of William Gibson Smith, who was killed while he was at work as a common laborer in the construction of a section of the southern outfall sewer by the appellee. The work had been originally let to a general contractor, who failed to carry out his contract, whereupon the appellee undertook its completion. Appellee's superintendent and engineer were in charge of the work, and Smith was an employé and engaged at work under one of appellee's foremen and its superintendent, when he was killed through the negligence of appellee's agents and servants. The trial judge sustained a demurrer to the petition as amended, upon the ground that in constructing the sewer the appellee was exercising a purely governmental function, and for that reason was not liable for the negligent acts of its employés, which resulted in Smith's death. The plaintiff having declined to further plead, the petition was dismissed, whereupon the plaintiff prosecuted this appeal.

The trial judge rested his ruling upon the authority of Board of Park Commissioners v. Prinz, 127 Ky. 460, 105 S.W 948, 32 Ky. Law Rep. 359, and Kippes v. City of Louisville, 140 Ky. 423, 131 S.W. 184, 30 L.R.A. (N. S.) 1161. The only question presented by this appeal is the liability of the appellee to suit for personal injuries resulting in the death of Smith. The appellee was created and its duties defined by the act of 1906 (Acts 1906, c. 1), which is a part of the charter of cities of the first class, being section 3037b of the Kentucky Statutes (sections 858-872, Russell's St.). The constitutionality of this act was upheld by this court in Miller v. City of Louisville, 99 S.W. 284, 30 Ky. Law Rep. 664, which case was subsequently approved by this court in Render v. City of Louisville, 142 Ky. 414, 134 S.W. 458, 32 L.R.A. (N. S.) 530.

By sections 6 and 9 of the Act of 1906, creating appellee, it is expressly empowered to construct the sewer upon which Smith was working at the time of his death; and, by section 10 of said act, the sewers, when completed and ready for use, must be turned over to the board of public works of the city for future control. After the sewer shall have been completed, the appellee will have no further duties to perform. It therefore appears that the whole tenor of the act makes the appellee one of the public boards of the city of Louisville, for a special governmental purpose, and its property, of every character, belongs to the city in trust for the public, which is taxed to provide for the discharge of the bonded debt voted by it. If appellant could recover a judgment against the appellee, there would be no funds in its hands with which to satisfy the judgment, since the law requires that all money in its hands must be applied to the construction of sewers; and clearly the appellant would not be allowed to take possession of the sewerage system of the city and confiscate it to his own use.

In the Prinz Case, Prinz sued the board of park commissioners of the city of Louisville to recover damages for injuries which he claimed he had sustained by the negligence of the employés of the park commissioners in the operation of a steam roller. He recovered a judgment in the circuit court, which, however, was reversed by this court in an elaborate opinion, which reviewed the authorities and settled the law, in so far as this jurisdiction is concerned. The reasoning of the opinion in the Prinz Case applies with possibly greater force to the case at bar.

Appellant insists, however, that the appellee is, by the terms of the act, charged only with ministerial duties, and has no governmental functions or powers, and is, therefore, liable for the negligent acts of its employés, just as a private corporation or individual would be liable. This contention is based upon the claim that the appellee does not have jurisdiction or governmental discretion with regard to the adoption of a sewer system, since that provision was made by the act; but its purpose is merely to construct the sewers provided, for the private advantage and benefit of the locality and the inhabitants of the city of Louisville, which purposes, it is claimed, are essentially private, as defined in the Prinz Case. This contention of appellant, however, is neither sustained by the reasoning nor the language found in the opinion in the Prinz Case, since in that case we said "The property held in trust by the board of park commissioners for the use of the public generally is not the subject of taxation. This was expressly decided by this court in the case of City of Owensboro v. Commonwealth, 105 Ky. 344, 49 S.W. 320, 20 Ky. Law Rep. 1281, 44 L.R.A. 202, and that parks may be acquired by cities, and taxes imposed for their purchase and care, was decided in City of Lexington v. Kentucky Chautauqua Assembly, 114 Ky. 781, 71 S.W. 943, 24 Ky. Law Rep. 1568. It may therefore be regarded as settled in this jurisdiction that public parks, maintained and managed without corporate or individual gain or profit, are not only exempt from taxation, but may be created and maintained by taxation. Hence they are essentially public places established for purely public purposes. The right of the city to support public parks by taxation is rested upon the ground that the municipal authorities are charged with the duty of maintaining the public health, and that parks where exercises and recreation can be indulged in, and pure and clean air breathed, contribute largely to the health of the community. Viewing the matter from this standpoint, the parks of the city occupy towards it and its inhabitants the same relation as do hospitals and other public institutions useful and necessary in the preservation of the health, safety, and morals of the people." And, after an exhaustive review of the cases, the court closed its opinion in the Prinz Case as follows: "From the cases written by this court, it may safely be said that in matters pertaining to...