Williams v. Town of Morristown

• Decision Date: 02 February 1949
• Citation: 222 S.W.2d 607
• Parties: WILLIAMS v. TOWN OF MORRISTOWN et al. (two cases).
• Court: Tennessee Supreme Court

Page 607

222 S.W.2d 607

WILLIAMS v. TOWN OF MORRISTOWN et al. (two cases).

Court of Appeals of Tennessee Middle Section.

February 2, 1949.

Certiorari Denied by Supreme Court July 9, 1949.

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Kilgo & Armstrong, Greeneville, Hodges & Doughty, Knoxville, for plaintiffs in error.

Stuart F. Dye, Knoxville, E. R. Taylor, Morristown, for defendants in error.

HICKERSON, Judge.

Barbara Jean Williams, a child nine years old, was drowned in a reservoir or pool which was a part of the water works system of the Town of Morristown, Tennessee. Margaret Louise Williams, twenty-nine years old, aunt of Barbara Jean, was drowned at the same time in an effort to rescue Barbara Jean. These suits were brought to recover damages for their deaths.

The suits were tried together below, but separate records were made. They come to this court as separate cases; but we shall dispose of them in one opinion. The bills of exceptions in the two cases before us are identical. The suits were brought against the Town of Morristown and the Board of Electric Light and Water Works Commissioners for the Municipal Corporation of the Board of Mayor and Aldermen of the Town of Morristown, Tennessee, namely: R. T. Bales, H. S. Walters, and J. B. Neill. We shall refer to these parties as defendant since there is no personal liability against the commissioners.

Liability in the case involving Margaret Louise Williams' death depends upon liability in the case which involves the death of Barbara Jean Williams; so we shall first consider and dispose of the latter case.

In substance, plaintiff, the administrator of the estate of Barbara Jean Williams, alleged in his declaration:

The area around this reservoir or pool, which was owned and operated as a part of the water works system of defendant, was used as a picnic ground by all the people with the knowledge of defendant and had been so used for many years. Children constantly frequented the grounds. The pool where Barbara Jean Williams was drowned was an attractive place to children. Defendants negligently maintained this pool in that: (1) There were no warning signs that the pool was dangerous; (2) There were no fences nor guards nor watchmen to prevent accidents at the pool; (3) The pool was constructed so the walls, made of cement, sloped sharply to the bottom; (4) They were covered with moss and these two conditions made it impossible for anyone to wade out of the reservoir; and (5) The pool was so clear that it appeared to be shallow when it was nine feet deep.

Barbara Jean Williams came to these grounds on July 21, 1947, with her aunt and several other persons to enjoy a picnic. She was attracted to the reservoir and fell into it while playing around it and was drowned.

By amendment to his declaration, plaintiff alleged defendant carried insurance as a protection against any liability "for torts or negligence," in connection with the operation of its water works system. This allegation in the amendment to the declaration was stricken by the trial judge upon motion of defendant.

Defendant pleaded the general issue.

At the conclusion of the evidence, the trial judge overruled defendant's motion for directed verdict. The jury returned a verdict for plaintiff and judgment was entered thereon.

The motion of defendant for new trial was sustained, and the judgment set aside. Thereupon, the trial judge directed a verdict for defendant and dismissed plaintiffs' suits.

Plaintiff's motion for new trial was overruled, and he appealed in error to this court.

Two questions are made by the assignments of error:

(1) Did the trial judge err when he directed a verdict for defendant?

(2) Did the trial judge err when he struck that part of plaintiff's declaration wherein plaintiff alleged that defendant carried insurance to protect it against suits in tort?

Since the motion for directed verdict was upon general grounds, we must determine if the motion could have been sustained upon any ground.

The following specific defenses to the suit were interposed:

(1) The area where the pool and picnic grounds were located was a public park of defendant; in the maintenance of this park defendant acted in its governmental capacity; and it was therefore immune from suit in a tort action involving an accident in connection with the operation of the park.

(2) In maintaining the pool in which Barbara Jean Williams was drowned, defendant was acting in its governmental capacity; and for that reason it was not liable for her death.

(3) Barbara Jean Williams was a trespasser upon the premises of defendant when she met her death and defendant owed her no duty except to refrain from wilfully and wantonly injuring her; and there was no proof of wilful or wanton negligence.

(4) Barbara Jean Williams and her parents were guilty of contributory negligence, as a matter of law, which precluded her recovery.

We shall respond to these contentions or defenses of defendant in the order stated.

(1) Did defendant act in its governmental capacity in the maintenance of this picnic ground on which the pool, wherein Barbara Jean Williams was drowned, was located?

Operating a public park by a municipality is a governmental function. City of Nashville v. Burns, 131 Tenn. 281, 174 S.W. 1111, L.R.A. 1915D, 1108; Rector v. Nashville, 23 Tenn.App. 495, 134 S.W.2d 892.

At common law a municipality is immune from suit in tort if it is acting in its governmental capacity; and it is liable in tort when it is acting in a private capacity. 38 Am.Jur., 261, Municipal Corporations, Section 572. There is no statute on the subject in this state.

These picnic grounds were not operated by defendant as a public park. It was an area owned by defendant upon which were located the water works reservoirs. By consent, and as a matter of practice, defendant had permitted people to use the grounds for picnic purposes. Although express permission was not given each time the grounds were used for picnics, defendant had knowledge that they were being used in this manner and made no objection thereto.

"A park is a pleasure ground set apart for recreation of the public, to promote its health and enjoyment." Williams v. Gallatin, 229 N.Y. 248, 128 N.E. 121, 122, 18 A.L.R. 1238.

A park is defined in 39 Am.Jur., 803, Parks, Squares, and Playgrounds, Section 2:

"The term `park,' as now commonly understood in this country, means a piece of ground acquired by a city, town, or other public authority, for ornament, and as a place for the resort of the public for recreation and amusement."

Quite obviously, defendant did not maintain this picnic area as a public park within the meaning of these definitions of a public park. It cannot escape liability for the death of Barbara Jean Williams on the ground that she lost her life in a public park operated by defendant in its governmental capacity.

(2) Was defendant acting in its governmental capacity in the maintenance of the reservoir or pool in which Barbara Jean Williams was drowned?

To define specifically the terms "governmental capacity" and "proprietary capacity" is impossible. Wherefore, each case must be decided upon its own facts. The purpose and character of the undertaking, and the method of its operation, determine whether it is public or private.

It is the settled common law of this state that the operation of an electrical power system or a water works system is a corporate or private function of a municipality, and not a public or governmental function. Memphis Power & Light Company v. City of Memphis, 172 Tenn. 346, 112 S.W.2d 817; Saulman v. Mayor and City Council of Nashville, 131 Tenn. 427, 175 S.W. 532, 533, L.R.A.1915E, 316, Ann.Cas.1916C, 1254.

In the Saulman case, the court quoted with approval from McQuillan on Municipal Corporations, Volume 4, section 2622, where it is said:

"Yet in every state except South Carolina it is the settled rule that a municipality is liable at common law for its torts in the performance or nonperformance of municipal or corporate duties, as distinguished from governmental duties."

Section 2680:

"It is settled beyond dispute that a municipality which operates its own water, electric light, or gas plant acts in a private and not a governmental capacity, and is liable for its negligence in connection therewith."

In Stocker v. City of Nashville, 174 Tenn. 483, 126 S.W.2d 339, 340, 124 A.L. R. 345, the court said:

"The clear and unmistakable terms of the Act under which the City of Nashville maintains and operates this Airport leaves no room for construction or debate as to classification and we find no valid reason for refusing to give effect to its immunity provision.

"We have here a direct legislative declaration on which is conditioned the grant of power to municipalities to engage in this enterprise that it is a `public governmental function', and that the municipality shall not be subject to suit on account of the exercise thereof."

Defendant takes the position that this water system was operated by it without profit in obedience to the provisions of the statute authorizing it to own and operate its water system, and, therefore, the system was operated in its governmental capacity.

If a municipal enterprise is operated for profit, it is a proprietary undertaking; but it does not follow, necessarily, that it is a governmental undertaking if it is not operated for profit. Saulman v. Mayor and City Council of Nashville, supra.

If the Act which authorized the operation of the water system by defendant expressly declared such enterprise to be a governmental function, we should feel bound to accept such legislative declaration under the authority of Stocker v. City of Nashville, supra.

The operation of this water system was authorized by Chapter 392, Acts of 1901. This Act provides:

"Said Electric Light and Water Works commissioners shall have charge and supervision of the electric light and water works systems of the...