Wendler v. City of Great Bend

• Decision Date: 27 September 1957
• Docket Number: No. 40598,40598
• Citation: 316 P.2d 265,181 Kan. 753
• Parties: Leo WENDLER, Appellee, v. The CITY OF GREAT BEND, Kansas, Appellant.
• Court: Kansas Supreme Court

Page 265

316 P.2d 265

181 Kan. 753

Leo WENDLER, Appellee, v. The CITY OF GREAT BEND, Kansas, Appellant.

No. 40598.

Supreme Court of Kansas.

Sept. 27, 1957.

Syllabus by the Court

1. Where plaintiff seeks recovery from a municipality alleging the negligent destruction of his aircraft by fire, while stored in a hangar of the municipal airport, and the defendant municipality pleads the defense of governmental immunity, it is held that the municipality was operating the airport in its proprietary capacity, as distinguished from its governmental capacity, and by reason thereof the trial court properly struck the defense of governmental immunity from the answer of the defendant municipality.

2. Municipal corporations exist and act in a dual capacity, one governmental and the other proprietary. Generally, municipal corporations are not liable for negligent acts while in the discharge of their governmental functions as branches of the State or sovereign power, but their liability for negligence is equivalent to that of private persons or corporations while exercising their proprietary functions, the true test of liability being not the nature of the tort, or the relationship existing between the city and the person injured, or whether the city was engaged in the management of tangible property, but in what capacity the city was acting at the time.

3. In determining whether activities of a municipal corporation are governmental or proprietary, it is proper to consider whether the activity is primarily for the advantage of the state as a whole or for the special local benefit of the community involved, and to further consider whether such activity is in performance of a duty imposed upon the municipality by the sovereign power, or is in the exercise of a permissive privilege given by the sovereign power, but such tests are not conclusive to determine the capacity in which the city's activities are conducted.

4. In determining whether a municipality is acting in its proprietary or governmental capacity, the manner in which a municipal airport facility was acquired is immaterial, even though acquired from the War Assets Administrator under governmental regulations, restrictions and covenants. The fact that consideration given by a municipality in the acquisition of an airport flows to the public at large and the Nation does not alter the nature of the operation.

5. A municipal airport is essentially a part of a city's system of transportation facilities and as such assumes its proper place in the general field of transportation and commerce. The various commercial transactions by a municipality in the operation of an airport from which it seeks to derive revenue are only in part indicative of its commercial character, the full significance of its commercial nature being exemplified by the desired opportunities of a municipality for increased prosperity to be secured through air commerce. This classifies the airport with such public utilities as electric light, gas, water and transportation systems--universally classed as proprietary.

6. If a function undertaken by a municipality is commercial in its nature, the city is not exonerated from liability by the fact that its operations are not, or cannot be profitable.

7. The provisions of G.S.1949, 3-113, which permit a municipality to acquire an airport when in the opinion of the governing body 'the public safety, service and welfare can be advanced thereby', were intended by the legislature to be a declaration of the public purpose, in justification of powers granted, and not a declaration of immunity from liability for torts committed in the exercise of such powers.

8. All lawful enterprises of a municipal corporation must be performed for a public purpose, and the fact that a particular enterprise is for a public purpose does not determine whether such enterprise is a corporate or proprietary function, in the exercise of which the municipality is subject to tort liability, or a governmental function immune from such liability.

William I. Robinson, Wichita, argued the cause; Barton Carothers, Great Bend, Mark H. Adams, Charles E. Jones, J. Ashford Manka, Clifford L. Malone and Mark H. Adams II, Wichita, were with him on the briefs for appellant.

Leroy Warner, Wichita, argued the cause; S. R. Blackburn, Tudor W. Hampton, Jerry M. Ward and J. W. Hannah, Great Bend, were with him on the briefs for appellee.

SCHROEDER, Justice.

The question presented in this appeal is whether the operation of a municipal airport is a governmental function affording the municipality governmental immunity from tort liability in such operations.

This action comes before the court on appeal from a ruling of the lower court striking the defense of governmental immunity from the answer of the defendant, which the defendant contends is a meritorious defense.

In Boettcher v. Criscione, 180 Kan. 39, 299 P.2d 806, this court held that an order sustaining a motion to strike is appealable as a final order if it in effect deprives the defendant of a meritorious defense which, if supported by evidence, would defeat all or part of plaintiff's cause of action. See, also, Collins. v. Richardson, 168 Kan. 203, 212 P.2d 302; Hoffman v. Cudahy Packing Co., 161 Kan. 345, 167 P.2d 613; and Atherton v. Goodwin, 163 Kan. 22, 180 P.2d 296.

Leo Wendler, appellee, will be referred to as the plaintiff, and the City of Great Bend, Kansas, appellant, will be referred to as the defendant.

The plaintiff was the owner of a Steerman aircraft, equipped with engine, spray tank and spray unit. He seeks to recover for the destruction of his aircraft in a fire on January 5, 1954, which destroyed Hangar No. 5 on the Great Bend Municipal Airport and the aircraft therein. Plaintiff's aircraft had been placed for shelter in the hangar on the airport, which was operated and maintained by the City of Great Bend.

The plaintiff seeks recovery from the defendant on the ground of negligence alleging in his cause of action all of the necessary elements of the doctrine of res ipsa loquitur. Plaintiff alleged that he paid a good and valuable consideration and fee for the stroage of his aircraft in Hangar No. 5.

The sole question presented to this court for determination by the parties must be decided on the basis of the pleadings. The judgment of the trial court was invoked on questions of law as applied to the well pleaded facts attacked by the motion to strike. For this purpose the well pleaded facts alleged must be taken as true and a court is not justified in reaching out to make additional facts a part of the pleadings under attack. White v. Thompson, 181 Kan. 485, 312 P.2d 612; see, also, Whitaker v. Douglas, 177 Kan. 154, 277 P.2d 641; Geier v. Eagle-Cherokee Coal Mining Co., 181 Kan. 567, 313 P.2d 731; and Wahl v. Walsh, 177 Kan. 176, 277 P.2d 623.

The defendant contends that the stricken paragraphs of the answer alleged facts concerning the acquisition and operation of the municipal airport which establish that the city was operating the airport in its governmental, as distinguished from its proprietary, capacity on January 5, 1954, when the hangar was destroyed by fire.

The following facts are relied upon by the defendant, all of which have been stricken from the answer by the ruling of the trial court. The City of Great Bend acquired its airport by a deed dated December 15, 1947, from the United States of America, acting by and through the War Assets Administrator, under and pursuant to executive order and statutory authority and regulations. 50 U.S.C.A.Appendix § 1622(g); 11 F.R. 7427. The city's authority is found in G.S.1949, 3-113. The deed specifically provided that the transfer of the property was subject to the following restrictions, which run with the land:

'(1) That all of the property transferred hereby, hereafter in this instrument called the 'airport,' shall be used for public airport purposes, and only for such purposes, on reasonable terms and without unjust discrimination and without grant or exercise of an exclusive right for use of the airport within the meaning of Section 303 of the Civil Aeronautics Act of 1938 [49 U.S.C.A. § 453]. * * *

'(2) That the entire landing area, as defined in WAA Regulation 16, dated June 26, 1946, and all structures, improvements, facilities and equipment of the airport shall be maintained at all times in good and serviceable condition to assure its efficient operation, * * *.'

By the acceptance of the deed (a photostatic copy of which was incorporated in the answer by reference) or any rights thereunder the city further assumed additional reservations and restrictions providing in substance as follows: That no portion of the facilities transferred would be used in such a way as would be a hazard to the usefulness of the airport for airport purposes; that aircraft of the United States of America would at all times have the right to use the airport in common with others; and that during the existence of any emergency declared by the President of the United States or Congress the Government would have the right to take over the entire airport. Further provisions of the deed provided that a breach of any of the reservations, restrictions or conditions therein contained may result in a forfeiture of the rights transferred at the option of the Government. The WAA Regulation heretofore cited provides in part as follows:

'It is hereby declared that the national interest requires the disposal of surplus airport property in such a manner and upon such terms and conditions as will encourage and foster the development of civil aviation and provide and preserve for civil aviation and national defense purposes a strong efficient and properly maintained nationwide system of public airports, and will insure competition and will not result in monopoly. It is further declared that in making such disposable of surplus airport property the benefits which the public and...