Talbott v. Bd. of Com'rs of St. Joseph Cnty.

• Decision Date: 30 June 1908
• Docket Number: No. 6,158.,6,158.
• Citation: 85 N.E. 376,42 Ind.App. 198
• Parties: TALBOTT et al. v. BOARD OF COM'RS OF ST. JOSEPH COUNTY et al.
• Court: Indiana Appellate Court

42 Ind.App. 198

85 N.E. 376

TALBOTT et al.

v.BOARD OF COM'RS OF ST. JOSEPH COUNTY et al.

No. 6,158.

Appellate Court of Indiana.

June 30, 1908.

Appeal from Circuit Court, St. Joseph County; W. A. Funk, Judge.

Action by Harry E. Talbott and others against the board of commissioners of St. Joseph county and others. Judgment for defendants, and plaintiffs appeal. Affirmed.Hubbard & Hubbard and Robert Ramsey, for appellants. Hastings, Woodward & Gray, for appellees.

WATSON, J.

Appellants, who are bridge contractors, brought this action to recover damages in tort and contract from appellee, basing their claim upon false representations and breach of contract concerning certain bridge plans which had been furnished them by appellee and on which they had relied in preparing a bid for the construction of a concrete-steel, Milan, arch bridge over the St. Joseph river in the city of Mishawaka, St. Joseph county, Ind. Owing to the magnitude of the contract, appellee advertised for bids both in the local weekly papers and in various engineering journals; such advertisements providing that the bids should be based upon the plans, specifications, and drawings which appellee had caused to be prepared and filed in the office of the county auditor. Relying solely upon these plans, specifications, and drawings, appellants, whose place of business was in Dayton, Ohio, submitted a bid for $57,229, which was accepted. There were words on the blue print construed by appellants to mean that gravel and hardpan would be found in the river bed where the piers were to be placed. As a matter of fact, such soil contained large masses of rock and boulders, which were so wedged together that they had to be removed before piling could be driven. This was done by appellant at the additional expense of $15,000, which, before bringing suit, was demanded of the auditor and board of commissioners of said county and refused, and for which this suit is brought. Appellee filed a demurrer to the complaint, which was sustained by the court, and upon which ruling error is assigned.

The first paragraph of the complaint was drawn on the theory that by a misrepresentation as to the nature of the river bed appellee's officers committed a fraud upon appellants. It is well settled in this state that counties are not liable for the tortious acts of county officers or agents, even when engaged in the performance of their duties, unless a right of action against the county therefor is expressly given by statute. Board, etc., v. Boswell, 4 Ind. App. 133, 30 N. E. 534;Board, etc., v. Reiner, 18 Ind. App. 119, 47 N. E. 642;Schnurr v. Board, etc., 22 Ind. App. 188, 53 N. E. 425;Summers v. Board, etc., 103 Ind. 263, 2 N. E. 725, 53 Am. Rep. 512;White v. Board, etc., 129 Ind. 396, 28 N. E. 846;Smith v. Board, etc., 131 Ind. 116, 30 N. E. 949;Morris v. Board, etc., 131 Ind. 285, 31 N. E. 77;Board, etc., v. Daily, 132 Ind. 73, 31 N. E. 531;Cones v. Board, etc., 137 Ind. 404, 37 N. E. 272;Freel v. School City, 142 Ind. 27, 41 N. E. 312, 37 L. R. A. 301;Board, etc., v. Allman, 142 Ind. 573, 42 N. E. 206, 39 L. R. A. 58. In the case of Smith v. Board, supra, the court said: “A ‘county’ is a civil or political division of the state, created by general laws to aid in the administration of the government, and, in the absence of a statute imposing special duties with corresponding liabilities, is no more liable for the tortious acts or negligence of its agents and officers than the state.” Appellants contend that the case at bar is to be distinguished from these cited, supra, by the fact that by reason of said tortious acts on the part of its officers the county has obtained certain property which it will be enabled to hold without remunerating appellants if this relief is not granted. The distinction is more of form than substance. In the absence of a bar to the proper action, the fact emphasized by appellants in their brief would render the county liable for the value of the property thus received; but this is a controversy over a contract. It is not a case where property of appellants has been either willfully or negligently appropriated by the agents of the county for the use and benefit of said county. At the last analysis it is for extra pay for extra work over the contract price. Such a liability in no way conflicts with the...