Warren v. Town of Booneville

Decision Date01 October 1928
Docket Number27280
Citation151 Miss. 457,118 So. 290
CourtMississippi Supreme Court
PartiesWARREN v. TOWN OF BOONEVILLE. [*]

Division A

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.

HON. C P. LONG, Judge.

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.

OPINION

MCGOWEN, J.

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:

"Comes Malachi Warren and claims of the town of Booneville, a municipal corporation, and a subdivision of the state of Mississippi, the sum of ten thousand dollars for injuries done to and wrongs suffered by him, proximately caused by the defendant corporation, its agents, officers, or employees, for that heretofore, on, to-wit, the 15th day of June, 1927, said plaintiff was engaged in serving a sentence for a violation of an ordinance of the town of Booneville, by labor upon defendant's streets and alleys; that on said date the defendant was engaged, by its agents, officers, and employees, in maintaining and improving its streets and alleys, and that in so doing it then and there had, as its employee in charge of said work as superintendent or foreman, one R. B. Moreland, who was then and there in charge of the plaintiff and others engaged in such work for the city as aforesaid. And while engaged in such work, and at such time and place, the said R. B. Moreland, while acting in the line of his duty as an employee of the defendant, and while acting within the scope and authority of his employment, did willfully, wantonly, and in a negligent manner chain and shackle the legs of plaintiff, and forced him to work on the streets thus chained and shackled, for three full days. By reason of which wrongs and injuries, and as a proximate consequence thereof, plaintiff has suffered great bodily pain and mental anguish and has been permanently injured in his health; he has suffered great loss of time and incurred great expense; he has permanently and totally lost the use of one of his legs, and constantly suffers great bodily pain and mental anguish; and he has also been deprived of the means of continuing his usual occupation and is utterly unable to earn a livelihood. And he charges and avers that the injuries and damages herein complained of were proximately caused by the wrongful and wanton negligence of the defendant, its agents, officers, and employees engaged and acting as aforesaid. Hence this suit."

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...

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