Taylor v. Westerfield

• Decision Date: 28 March 1930
• Citation: 233 Ky. 619,26 S.W.2d 557
• Parties: TAYLOR v. WESTERFIELD.
• Court: Kentucky Court of Appeals

26 S.W.2d 557

233 Ky. 619

TAYLOR v. WESTERFIELD.

Court of Appeals of Kentucky

March 28, 1930

Appeal from Circuit Court, Ohio County.

Action by R. F. Taylor against J. B. Westerfield. Judgment of dismissal, and plaintiff appeals.

Reversed with directions.

Barnes & Smith, of Hartford, for appellant.

Heavrin & Martin, of Hartford, for appellee.

DIETZMAN J.

A demurrer having been sustained to the petition, as amended of the plaintiff, and he having declined to plead further the petition, as amended, was dismissed, and the plaintiff has appealed.

In substance, the plaintiff alleged that on April 21, 1929, the defendant (now appellee) was under contract with the state highway department to grade and drain a public highway known as part of project No. 66B, beginning near Beaver Dam, Ky and extending in a southerly direction for about four miles to Horton, Ky.; that the defendant in the performance of his contract left open, unguarded, and without any lights or other warning a ditch or channel extending across said public highway and of a depth of 20 feet or more; that the plaintiff, while lawfully traveling along this highway in an automobile, on account of the negligence of the defendant in leaving this ditch in the condition described, ran his car into the ditch, thereby causing damage to the automobile and severe injuries to himself.

It has long been the settled rule in this state that, for personal injuries caused by defects in the public highways, neither the county nor the state is answerable in damages. Ockerman v. Woodward, 165 Ky. 752, 178 S.W. 1100, L.R.A. 1916A, 1005. The state as a sovereign is not suable without its consent. Section 231, Constitution. The reason for exempting a municipality or sovereign from damages for injuries inflicted in the performance of its governmental functions is one of public policy to protect public funds and public property. Taxes are raised for certain specific governmental purposes, and, if they could be diverted to the payment of damage claims, the more important work of government, which every municipality or sovereign must perform, regardless of its other relations, would be seriously impaired, if not totally destroyed. The reason for the exemption is sound and unobjectionable.

The appellee's contention is that he, though an independent contractor, is extended the immunity of the sovereign, and cannot be sued, as he was engaged in doing public work in reconstructing the highway. This appears to be the rule of law in Kentucky at the present time as is shown by the following cases: Blue Grass Traction Co. v. Grover, 135 Ky. 685, 123 S.W. 264, 267, 135 Am.St.Rep. 498; Schneider v. Cahill (Ky.) 127 S.W. 143, 144, 27 L.R.A. (N. S.) 1009; Moss et al. v. Rowlett, 112 Ky. 121, 65 S.W. 153, 358, 23 Ky. Law Rep. 1411; Ockerman v. Woodward, supra. Under these cases the trial court was thoroughly warranted in sustaining the demurrer to the petition as amended.

In the case of Blue Grass Traction Co. v. Grover, supra, the traction company had built a bridge over the Southern Railway Company's track under an agreement with the fiscal court of the county to maintain the bridge forever, free of cost to the county. The bridge formed a part of the county road. The traction company permitted the bridge to get out of repair, with the result that a valuable horse belonging to Grover was injured while crossing the bridge. Grover recovered a judgment against the traction company which was reversed by this court, upon the theory that, as the county was an arm of the state government, exercising a part of the powers of the state and created by the Legislature for the purpose of building and maintaining the public roads, a governmental function, neither it nor any of its officials could be held liable for damages in the performance of that duty; therefore the traction company which had taken over that duty was likewise not liable. In the course of the opinion, we said: "To hold that the county is not responsible for a defect in the highway, but that the contractor who agrees with the county to discharge the duty which the law places upon the county, is responsible to a traveler injured by a defect in the highway, would be to overlook the reason upon which the rule rests; for the county would be unable to make contracts for the keeping in repair of its highways if such a liability existed on as reasonable terms as it can where it must only pay a reasonable price for the necessary work; because, if the contractor assumes the greater liability, he must necessarily take this into consideration in fixing the price for which he may do the work."

The court further said: "The bridge was a part of the county highway, and, unless the traction company became liable by reason of its contract with the fiscal court, or by some other fact shown in the case, then it is not liable to Grover for an injury to his mare while traveling on the public highway by reason of a defect in it."

The opinion then quotes the contract between the traction company and the county at length, and closes as follows: "To hold the traction company liable for such damages on a contract to maintain the bridge free of cost to Fayette county would be to extend the obligation of the contract beyond the fair and natural meaning of its terms."

It will be observed that the conclusion there reached is based entirely upon the idea, which is emphasized, that the traction company's duty with reference to this bridge was contractual only, and that the obligation of the contract according to its terms did not extend to a tort claim such as was asserted in that action. The court did say, however, that a contractor is not liable to third parties for his negligence in performing a contract with the county to build or repair a public road because of the public policy involved, and that was, in short, just this: In order for the public to get its work done as cheaply as possible, it is better for the individual to suffer the damage which may be caused him in the negligent prosecution of the work than that the public should be called upon to sustain it by having to pay a contractor more to get the work done in order that he may protect himself against loss by reason of such claims. This Blue Grass Traction Co. Case was decided in 1909. Since that time, the outlook on social problems and social legislation has changed much. Laws protecting women and minors in hours of labor, workmen's compensation acts, employer's liabilities acts, have been placed upon our statute books. Legislation which once would have been held as violative of our theories of freedom of contract is now held constitutional almost as a matter of course. As said by the Supreme Court in the case of Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 118, 71 L.Ed. 303, 54 A.L.R. 1016: "While the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In the changing world it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles, statutes and ordinances, which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution, of course, must fall."

It is now accepted that the industry, and not the individual, should bear the burden of industrial accidents, and, with like reasoning, the individual should not be compelled to bear the burden of negligent prosecution of public work, at least where carried on by an independent contractor. No doubt the state and its subordinate arms of government, its servants and officials, will and perhaps should, like Richelieu, draw around it the magic circle of "sovereignty" to protect itself against suits by individuals. The independent contractor, however, is no sovereign, and the protection of sovereignty should no longer be extended to him, since, in the light of our changed views as to public policy, the public should not take the advantage of getting its work done cheaply by shifting the burden of sustaining the damage caused by the negligent prosecution of that work by an independent contractor upon the injured individual.

It was on this theory advanced in the Bluegrass Traction Company Case that public policy required a shifting of the burden to the injured individual that the subsequent cases were decided.

In the case of Schneider v. Cahill, supra, a contractor had undertaken the construction of a county road. He cut a ditch in the road and permitted it to be left open and unguarded. Plaintiff fell into the ditch and was injured. In denying a recovery, we said: "It is the duty of the county to care for and maintain its public roads, and whether this work is done by hands employed by the day under the general supervision of a county official, or under the direction of a supervisor or contractor, is immaterial. The result is the same; the expense in either event being borne by the county. And where, because of some defect in the work or in the manner in which it is done, an injury is sustained by one...