Warren v. Town of Booneville
Decision Date | 01 October 1928 |
Docket Number | 27280 |
Citation | 151 Miss. 457,118 So. 290 |
Court | Mississippi Supreme Court |
Parties | WARREN v. TOWN OF BOONEVILLE. [*] |
1. MUNICIPAL CORPORATIONS. Municipality, in maintaining and repairing streets, is exercising corporate function.
A municipality in exercising its statutory duty and prerogative of maintenance and repair of its streets, is exercising a corporate function.
2. MUNICIPAL CORPORATIONS. Municipality held not liable for injury to prisoner, because of being forced to work on streets while shackled and chained (Hemingway's Code 1927, section 6781).
Municipality held not liable for injury to prisoner, forced to work on streets with shackle and chains, in accordance with authority of Hemingway's Code 1927, section 6781 (Code 1906 section 3345), since city, in working Its prisoners on the streets, exercises a governmental function, as mere incident to carrying out of imposition of sentence.
APPEAL from circuit court of Prentiss county, HON. C. P. LONG Judge.
Action by Malachi Warren against the town of Booneville. Judgment sustaining a demurrer to the declaration, and plaintiff appeals. Affirmed.
Affirmed.
Friday & Windham, for appellant.
The one legal question presented on this appeal is: Is a municipal corporation liable for the injury of a city convict by wrongful act of the officer or agent guarding and superintending the work of the prisoner in the repair and maintenance of the streets of the city?
It is the long-declared law of this state that in the maintenance and repair of public streets and sidewalks the municipality is engaged in a corporate function. See Whitfield v. City of Meridian, 66 Miss. 570, 6 So. 244, 4 L. R. A. 834, 14 Am. St. Rep. 596; City of Vicksburg v. McLain, 67 Miss. 4, 6 So. 774; Nesbitt v. City of Greenville, 69 Miss. 22, 10 So. 452, 30 Am. St. Rep. 521; Carver v. Jackson, 82 Miss. 583, 35 So. 157; City of Pascagoula v. Kirkwood, 86 Miss. 630, 38 So. 547; Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329, 39 L. R. A. (N. S.) 629; Hardin v. City of Corinth, 105 Miss. 99, 62 So. 6; Saxon v. Town of Houlka, 107 Miss. 161, 65 So. 125; Higginbottom v. Village of Burnsville, 113 Miss. 219, 74 So. 133; Mayor etc. City of Vicksburg v. Harralson, 136 Miss. 872, 101 So. 713; Atkinson v. Town of Decatur, 131 Miss. 707, 95 So. 689. And the city while so engaged is liable for injuries caused by the negligent acts of its servants under the doctrine of respondeat superior.
On the other hand the authorities are uniform in holding nonliability for negligent injury to prisoners due to defective or insanitary prisons, confinement with drunken, vicious, or infected fellow prisoners, or exposure to cold or fire therein. See 43 C. J. 967; Hillman v. City of Anniston (Ala.), 108 So. 539; City of Birmingham v. McKinnon, 200 Ala. 111, 75 So. 487; Athens v. Miller, 190 Ala. 82, 66 So. 702; Posey v. North Birmingham, 154 Ala. 511, 45 So. 663, 15 L. R. A. (N. S.) 711.
The case of Nisbet v. Atlanta, 97 Ga. 650, 25 S.E. 173, as to facts is practically on all fours with the case at bar. Neither this case, nor any other coming to our attention, has discussed the dual relation occupied by the police officer in custody of the prisoner, and at the same time the corporate agent in working the prisoner, at a corporate rather than governmental enterprise. It is generally held as in Alabama that in the prosecution of corporate rather than strictly governmental undertakings the doctrine of respondeat superior does not apply in favor of third persons or employees injured or killed as the proximate result of the wrongful act of such agent acting in the line of his employment. It is therefore respectfully submitted that the court below was in error in sustaining the demurrer to the declaration.
J. A. Cunningham, for appellee.
The whole issue is bottomed on the question of whether or not this court will hold a city or municipality liable in tort for the action of its police agents for the negligence of such police agents in working a municipality's prisoners on the public street. No announcement of this court has come to the writer's attention, and we respectfully submit that it is a question of some importance, and, in our judgment, the action of the trial court ought to be sustained in the interest of public policy. See 19 R. C. L., sec. 404. Curan v. City of Boston, 151 Mass. 505, 21 Am. St. Rep. 465, is one of the best-reasoned cases that has come to our attention, and we respectfully submit that it is decisive of the question at issue in favor of protecting the city in such cases, in the interest of a wholesome public policy We think the prior holdings of the Alabama court, 14 So. 357, is neither well-reasoned nor properly backed-up by authorities. The state of Alabama made a recent announcement of the same indefensible position in 108 So. 539, in the case of Hillman v. City of Anniston, in which there was a dissenting opinion by Justice GARDNER, and concurred in by Chief Justice ANDERSON and Justice SOMERVILLE. We think the dissenting opinion certainly superior in merit and authority and ought to carry better weight with a court like ours, not hampered by precedent, as was the Alabama court. See Nisbit v. City of Atlanta, 25 So. 173.
The statement cited and quoted by counsel from 43 C. J., sec. 404, is a bare statement of the law taken as formerly announced by the state of Alabama, and cites but a single authority to sustain its position, which opinion does not meet the approval of at least three of the justices of the supreme court of Alabama.
Warren, the appellant, prosecutes this appeal from a judgment of the circuit court sustaining appellee's (town of Booneville) demurrer to the declaration filed by it therein. The declaration is as follows:
The substance of the appellee's demurrer is that the town of Booneville is not liable, because at the time the injury took place the municipality was acting in its governmental capacity, and the injury was not the result of its action while acting in its corporate capacity. Appellant assigns as error the action of the court in sustaining the demurrer to his declaration.
It will be observed that the gravamen of appellant's cause of action is that he was required to work on appellee's street, guarded as a prisoner, and that appellee's foreman or superintendent required him to so work shackled and chained, and his legs were injured by the fact that he was forced to wear shackles and chain.
Our state is quite fully committed to the doctrine that a municipality, in exercising its statutory duty and prerogative of maintenance and repair of its streets, is exercising a corporate function. Whitfield v. City of Meridian, 66 Miss. 570, 6 So. 244, 4 L. R. A. 834, 14 Am. St. Rep. 596; City of Vicksburg v. McLain, 67 Miss. 4, 6 So. 774; Nesbitt v. City of Greenville, 69 Miss. 22, 10 So. 452, 30 Am. St. Rep. 521; Carver v. Jackson, 82 Miss. 583, 35 So. 157; City of Pascagoula v. Kirkwood, 86 Miss. 630, 38 So. 547; Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329, 39 L. R. A. (N. S.) 649; Hardin v. City of Corinth, 105 Miss. 99, 62 So. 6; Saxon v. Town of Houlka, 107 Miss. 161, 65 So. 124; Higginbottom v. Village of Burnsville, 113 Miss. 219, 74 So. 133; Mayor, etc., of City of Vicksburg v. Harralson, 136 Miss. 872, 101 So. 713, 39 A. L. R. 777; Atkinson v. Town of Decatur, 131 Miss. 707, 95 So. 689. It will be noted that Warren was a prisoner serving a sentence; that his injury was proximately caused by the wrongful act of the town's agent in the course of his employment.
Counsel for appellant cite 43 C. J. 967, the text of which is as follows:
"Injury to Convict.--Where a prisoner sentenced to...
To continue reading
Request your trial-
City of Meridian v. Beeman
...Brynes v. City of Jackson, 105 So. 861; Pass Christian v. Fernedez, 100 Miss. 76, 56 So. 329, 39 L. R. A. (N. S.) 649; Warren v. Town of Booneville, 118 So. 290; Methodist Church, South, v. Vicksburg, 50 Miss. Bradley v. City of Jackson, 119 So. 811, 819; Crawford v. Delo, 119 Miss 28; Brow......
-
Anderson, By and Through Doss v. Jackson Municipal Airport Authority, 53194
...to and from building, Semple v. City of Vicksburg, 62 Miss. 63 (1884); the maintenance and repairing of streets, Warren v. Town of Booneville, 151 Miss. 457, 118 So. 290 (1928); the construction and maintenance of sidewalks, Bishop v. City of Meridian, 223 Miss. 703, 79 So.2d 221 (1955); th......
-
Anderson v. Jackson Municipal Airport Authority
...and from building, Semple v. City of Vicksburg, 62 Miss. 63, (1884); the maintenance and repairing of streets, Warren v. Town of Booneville, 151 Miss. 457, 118 So. 290 (1928); the construction and maintenance of sidewalks, Bishop v. City of Meridian, 223 Miss. 703, 79 So.2d 221 (1955); the ......
-
City of Lexington v. Wilson's Estate
... ... Court, 95 Minn ... 183, 103 N.W. 881; Winnetka v. Taylor, 133 N.E. 656; ... Megary v. Town of Woodland, 269 P. 829; Reliance ... Automobile, etc., Co. v. Jackson, 221 N.W. 291; 4 Dillon ... ...