Vance v. Shelby County

• Decision Date: 22 June 1925
• Parties: VANCE v. SHELBY COUNTY ET AL.
• Court: Tennessee Supreme Court

273 S.W. 557

152 Tenn. 141

VANCE v. SHELBY COUNTY ET AL.

Supreme Court of Tennessee.

June 22, 1925

Certiorari to Court of Civil Appeals.

Action by Joseph W. Vance against Shelby County and others. Judgment of dismissal was affirmed by the Court of Civil Appeals as to the County, and reversed and case remanded as to other defendants, and plaintiff and such other defendants bring certiorari. Writs denied.

McKeller Keyser & Allen, of Memphis, for plaintiff in error.

L. D Bejach and Jackson, Neil & Adams, all of Memphis, for defendant in error.

HALL J.

Joseph W. Vance, who will hereinafter be referred to as plaintiff sued Shelby county, E. W. Hale, William J. Bacon, Luther F Jones, road commissioners of said county, A. M. Nelson engineer of said county, and Thomas Dean, one of its employés, to recover damages for personal injuries sustained by him growing out of the creation and maintenance of an alleged nuisance.

Plaintiff's declaration, in substance averred that prior to and on or about September 10, 1924, there existed in Shelby county, Tenn., a public road which was under the direct supervision, charge, and control of defendants; that said road was known as the Germantown & Hacks crossroad; that there had existed for some time a bridge across Nonconnah creek, which constituted a part of said road; that this bridge was constantly being used by a large number of people who traveled said road; that on or before the day above mentioned defendants, without any warning or notice to those who had been invited to use said road and bridge, did unlawfully, willfully, and wrongfully cause said bridge to be burned and torn out, leaving said road at the point where said bridge was located an open chasm from 12 to 15 feet deep and from 30 to 50 feet wide; that this chasm or opening so left by defendants in said road constituted a dangerous pitfall, snare, deathtrap and nuisance, which was likely to injure persons traveling said road, which fact was known to defendants, or should have been known to them; that, notwithstanding defendants had unlawfully, willfully, and wrongfully created and caused this dangerous pitfall and nuisance in said road, they failed to erect or cause to be erected and maintained any barriers or other obstructions to protect travelers using said road; and failed to maintain lights or other warnings at said place, notifying persons who might use said road of its dangerous condition, on account or which plaintiff, while in the lawful use of said road, and wholly without knowledge of said pitfall, snare, or nuisance, and in the nighttime, drove his automobile into said chasm or opening, on account of which he sustained serious and permanent injuries, from which he suffered great physical pain and mental anguish, and for which he sues.

All of the defendants demurred to the declaration, setting up the defense that the matters and things complained of by plaintiff in his declaration grew out of the exercise of a governmental function by the county and its officers, for which they cannot be held liable in the absence of malice or corruption; and the further ground that the averments of the plaintiff's declaration only establish nonfeasance on the part of defendants and the further ground that the burning or tearing out of the bridge in question involved the exercise of discretion and judgment upon the part of said defendants.

The trial court sustained the demurrers of defendants, and dismissed plaintiff's suit as to all of said defendants. From this judgment plaintiff appealed to the Court of Civil Appeals. That court affirmed the judgment of the lower court as to Shelby county, but reversed the judgment as to the other defendants named, and remanded the case to the trial court for further proceedings as to them. The case is now before this court upon the petition of plaintiff for certiorari, who complains of the action of the Court of Civil Appeals affirming the judgment of the trial court as to Shelby county. The individual defendants, officers, and employés of Shelby county have also filed petition for writs of certiorari, and to have the judgment of the Court of Civil Appeals reviewed as to them.

We are of the opinion that the Court of Civil Appeals was correct in affirming the judgment as to Shelby county. We think the case as to Shelby county falls within the rule announced in Carothers v. Shelby County, 148 Tenn. 187, 253 S.W. 708; White's Creek Turnpike Co. v. State, 16 Lea (84 Tenn.) 24; Wood v. Tipton County, 7 Baxt, 112, 32 Am. Rep. 561; Williams v. Taxing District, 16 Lea, 531; McAndrews v. Hamilton County, 105 Tenn. 399, 58 S.W. 483; Rhea County v. Sneed, 105 Tenn. 581, 58 S.W. 1063; State v. Wayne County, 108 Tenn. 262, 67 S.W. 72.

In Wood v. Tipton County, supra, it was held that, where a damage is sustained by reason of a failure to keep a public bridge in repair, the county is not liable. In that case the court said:

"We have no statute subjecting counties to suits for damages arising from neglect of the county officers. The county is declared a corporation to facilitate the execution of the powers delegated to it as a local Legislature, and to enable it to make binding contracts, and to be liable to suit for just claims arising under such contracts. But this is the extent to which, as corporations, counties can be sued."

In McAndrews v. Hamilton County, supra, the court said:

"The general rule is that counties are not liable for torts or negligence in the condition, use, and management of public institutions. Many reasons are assigned.

1. That there is no fund out of which satisfaction could be had.

2. That it is better that an individual should suffer than that the public should sustain an inconvenience.

3. That it is a subordinate political or governmental division of the state.

4. That its function or action in regard to such institutions is legislative, and that neither the state nor county could be sued on such account.

5. That counties are instrumentalities of government and partake of the immunities of states while acting in a governmental capacity."

The contention of plaintiff that the instant case falls within the rule announced by this court in Chandler v. Davidson County, 142 Tenn. 266, 218 S.W. 222, is not well grounded. In that case the nuisance consisted in the construction and maintenance of a ditch, apart from the road, and not in the building of the road.

In discussing the rule announced in Chandler v. Davidson County, supra, in Carothers v. Shelby County, 148 Tenn. 185, 253 S.W. 708, the court said:

"Confusion as to the rule applied in the Chandler Case arises from a failure to observe the facts of the case, and the language of the opinion, which distinguishes between negligence, an omission of duty, and a nuisance, or active wrong."

The court held in the Chandler Case that the nuisance complained of, and out of which the injuries to the plaintiff in that case grew, consisted in the construction and maintenance of the ditch, apart from the road, and not in the building of the road.

The creation of a nuisance is not a mere omission of duty by the county while exercising the delegated...