Williams v. City of Green Cove Springs

Decision Date28 April 1953
Citation65 So.2d 56
PartiesWILLIAMS v. CITY OF GREEN COVE SPRINGS.
CourtFlorida Supreme Court

Will O. Murrell and Wm. O. Murrell, Jr., Jacksonville, for appellant.

Thomas J. Rivers, Green Cove Springs, for appellee.

PER CURIAM.

We find no showing of a right to relief against the defendant below. Therefore the judgment appealed from is affirmed upon authority of Elrod v. City of Daytona Beach, 132 Fla. 24, 180 So. 378, 118 A.L.R. 1049; Lewis v. City of Miami, 127 Fla. 426, 173 So. 150. Upon the question whether the words 'any corporation' used in section 768.01, F.S.A., include Municipal Corporations see City of St. Petersburg v. Carter, Fla., 39 So.2d 804.

THOMAS, SEBRING, MATHEWS and DREW, JJ., concur.

ROBERTS, C. J., and TERRELL and HOBSON, JJ., dissent.

TERRELL, Justice (dissenting).

Pursuant to Chapter 768.01, F.S.A., Gladys Williams sued the City of Green Cove Springs to recover damages for the wrongful death of her husband, Willie Henry Williams. The complaint alleged that the city 'did carelessly, recklessly and negligently cause, suffer and allow the said Willie Henry Williams to remain confined in the said jail during the burning of said jail by fire of undetermined origin, so that, thereby, the said Willie Henry Williams, who was then and there the lawful husband of the plaintiff as aforesaid, did perish and die in the said fire.' It is further alleged that on account of said negligence the plaintiff was deprived of the care, companionship and consortium of her husband, that she was deprived of his earnings and has suffered great physical and mental pain. A motion to dismiss the complaint was granted and the plaintiff has appealed.

The point for determination is whether or not the City of Green Cove Springs, a municipal corporation, may be required to respond in damages for the wrongful death of a prisoner who perished in a fire of undeterminate origin which consumed the city jail in which said prisoner was confined.

The city contends that this question requires a negative answer because the administration of a municipal jail is a governmental function and that the city is not liable in damages for acts resulting from its negligent operation. This appears to be the theory on which the trial court held that the complaint failed to state a cause of action. It is also the theory on which the majority of this court has affirmed the order of the trial court dismissing the complaint. Elrod v. City of Daytona Beach, 132 Fla. 24, 180 So. 378, 118 A.L.R. 1049, Lewis v. City of Miami, 127 Fla. 426, 173 So. 150 and City of St. Petersburg v. Carter, Fla., 39 So.2d 804, are relied on to support this conclusion.

I recognize the rule of nonliability of a municipality for tort resulting from the performance of purely governmental functions, but I cannot bring myself to believe that when a city takes one in custody, incarcerates him in jail, and negligently permits the jail to burn and the prisoner to perish, it is exercising a strictly governmental function so as to exempt it from liability for negligently administering said function. There must be a point where governmental function ends and negligence begins. I do not think the cases relied on in the majority opinion are in point with or can be said to rule the case at bar. Elrod v. City of Daytona Beach has to do with a claim for damages resulting from the enforcement of an alleged unconstitutional city ordinance. Lewis v. City of Miami limits the rule of nonliability for tort resulting from the performance of a governmental function to those cases in which the city acts as an agency of the state for purely governmental purposes. It must not be overlooked, however, that the court imposed liability on the city for failure to segregate prisoners confined in jail where one was infected with a venereal disease and communicated it to another prisoner. St. Petersburg v. Carter treated the question of whether or not the word 'corporation' used in Section 768.01, F.S.A., Wrongful Death Statute, included municipal corporation.

In the case at bar we are confronted with a claim for damages on account of permitting one confined in the city jail to perish in a fire that burned the jail, the said burning alleged to have been caused by negligence of the city. One of the first lessons we learned in the law school was that for every wrong there is a remedy. Section 4, Declaration of Rights, provides that 'All courts in this state shall be open, so that every person for any injury done him in his lands, goods, person or reputation shall have remedy, by due course of law, and right and justice shall be administered with out sale, denial or delay.'

If no other remedy was available to appellant I do not think it would be a distortion of the law to hold that the quoted provision of the Declaration of Rights is self-executing and would afford a remedy in a case like this, but I do not think such a holding is necessary. I think when a governmental function is performed in a negligent manner, as alleged here, the municipality may be held liable. Ide v. City of St. Cloud, 150 Fla. 806, 8 So.2d 924; Lisk v. City of West Palm Beach, 160 Fla. 632, 36 So.2d 197.

The last cited cases have to do with negligent acts in the performance of charter powers authorized in the interest of the public, but in principle they are not materially different from Maxwell v. Miami, 87 Fla. 107, 100 So. 147, 33 A.L.R. 682, City of Tallahassee v. Kaufman, 87 Fla. 119, 100 So. 150 and Barth v. Miami, 146 Fla. 542, 1 So.2d 574, wherein the city was held liable for negligently operating a fire truck. Edwards v. City of Pocahontas, 4 Cir., 47 F. 268, was a case in which the city was held liable for negligently permitting its jail to become so filthy and unsanitary that the plaintiff was infected with a communicable disease. Certainly, if the city can be held liable for negligently letting its jail become unsanitary so that it spreads a communicable disease, it should be held liable for negligently permitting it to be burned and thereby consuming the life of a prisoner.

This court has never attempted to lay down a hard and fast rule delineating purely governmental functions. An examination of the cases cited herein discloses that the city may claim immunity from tort actions if it is faithfully following statutory or charter provisions in the execution of purely governmental functions, but even when performing such functions, if it acts negligently and wrongs one of its citizens, it cannot claim immunity from its wrong. Governmental immunity is not a cloak or refuge in which the municipality may ward off every species of negligence. There is no basis in reason for holding the city liable for the negligent operation of its fire truck or for negligently operating its jail so that an inmate is infected with a communicable disease and then give it the brush off when it negligently permits its jail to burn and consumes the life of a prisoner. To contend that such an injury must be laid to the cause which occasioned the prisoner's confinement, or that it is an incident thereto, is without any basis whatever in reason or justice.

It is true that this court has not previously been confronted with a suit for damages for the negligent death of a prisoner confined in the city jail, but a study of the cited cases reveals that we have approached controversies in which the question of nonliability for tort was raised in the light of justice and reason and not adjudicated them on the basis of outworn cliches that are devoid of either.

I think the doctrine of the last cited cases could very appropriately be extended to the case at bar, and in justice I think they should be. For this reason I dissent from the majority opinion.

HOBSON, J., concurs.

HOBSON, Justice (dissenting).

This suit originated in the Circuit Court in and for Clay County as a common-law action brought under the so-called wrongful death statute, Section 768.01, F.S.A., against the City of Green Cove Springs, Florida. The plaintiff below (appellant herein) charged in her complaint that the municipality permitted her husband, who was on or about the 24th day of February, 1950, confined in the city jail, to be burned to death as a result of the city's negligence in failing to remove him from said jail during a fire which was of undetermined origin.

Counsel for the City of Green Cove Springs filed a motion to dismiss upon the ground that the complaint failed to state a cause of action. In support of this motion counsel contended that the operation of the jail was a governmental function and that under our ruling in many cases a city while acting in a governmental, as distinguished from a proprietary, capacity cannot be sued in tort for the negligence of its officers or employees. The lower court sustained the motion to dismiss and this appeal ensued.

The sole question presented for our determination turns upon the proper construction to be given section 768.01, supra. The real query is whether the words 'any corporation' which are used twice in the statute include a municipal corporation. We have never before been faced squarely with the necessity of construing ...

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