Wroblewski v. Clark

• Citation: 146 A.2d 164,88 R.I. 235
• Decision Date: 21 November 1958
• Docket Number: No. 9858,9858
• Parties: Anna H. WROBLEWSKI v. Joseph P. CLARK, Director of Finance and Treasurer of the City of Pawtucket. Ex.
• Court: United States State Supreme Court of Rhode Island

Page 164

146 A.2d 164

88 R.I. 235

Anna H. WROBLEWSKI v. Joseph P. CLARK, Director of Finance and Treasurer of the City of Pawtucket.

Ex. No. 9858.

Supreme Court of Rhode Island.

Nov. 21, 1958.

Zucker & Winsten, Harold H. Winsten, Providence, for plaintiff.

John A. O'Neill, City Sol., Harvey J. Ryan, Asst. City Sol., Pawtucket, for defendant.

PAOLINO, Justice.

This is an action of trespass on the case for negligence. The declaration alleges in substance that a motor vehicle owned by the city of Pawtucket and operated by its servant, Samuel J. Grimley, negligently collided with an automobile owned and operated by the plaintiff on a public highway in said city while the plaintiff was in the exercise of due care. The defendant's amended special plea alleges that the city's motor vehicle was a payloader being used with other city trucks in sanding icy city streets and at the time of the collision was en route to the city garage to load sand onto the trucks. The amended special plea concludes with the allegation that defendant was engaged at the time in a governmental function and therefore was not liable for the alleged negligence of its servant.

The plaintiff demurred to this plea and alleged in substance that it does not appear therefrom that the city was at the time engaged in any governmental function with resulting immunity from civil liability. The demurrer was heard before a justice of the superior court. He filed a rescript containing an exhaustive discussion of the pertinent law. After a careful analysis of the allegations in said plea, he concluded that the operations described therein were governmental functions and that the city was therefore immune from liability. He thereupon overruled the demurrer, to which ruling plaintiff filed an exception.

Thereafter plaintiff filed a replication and the case proceeded to a hearing on the merits before another justice of the superior court sitting with a jury. The instant case was tried together with plaintiff's companion suit against Samuel J. Grimley, the operator of defendant's motor vehicle. That case resulted in a verdict for plaintiff for $2,000. In the instant case, however, the trial justice granted defendant's motion for a directed verdict. He based his decision on the grounds that, having listened to the testimony and concurring in the decision of the trial justice who had previously overruled the demurrer, he felt that defendant was engaged in a governmental function and was therefore immune from liability. To this ruling plaintiff duly excepted.

The cases were heard together before us, but because the legal issues raised therein are entirely different, we shall treat the cases separately. See our opinion filed this day in Wroblewski v. Grimley, R.I., 146 A.2d 161. The instant case is now before us on plaintiff's exceptions to the overruling of the demurrer and to the granting of defendant's motion for a directed verdict. However, since both exceptions raise the same legal issues we shall treat them as one.

The issues presented are (1) whether a municipality is liable for tort while in the exercise of governmental functions; and (2) whether the operation of a motor vehicle in the circumstances of the instant case is a governmental function.

It is well established in this state that in the exercise of governmental functions a municipality is not subject to civil liability unless the same is specifically imposed by statute. Wixon v. City of Newport, 13 R.I. 454; Blair v. Granger, 24 R.I. 17, 51 A. 1042; Hassett v. Thurston, 43 R.I. 47, 110 A. 394; Miller v. Clarke, 47 R.I. 13, 15, 129 A. 606, 42 A.L.R. 1204. It is also well established that if the function being exercised is proprietary and in pursuit of private and corporate duties, for the particular benefit of the corporation and its inhabitants and not for the common good of all the people of the state, the municipality is acting as a corporate individual. In the exercise of its powers as such corporation it is generally subject to civil liability for the omission, negligence or misconduct of its officers, servants and agents. Miller v. Clarke, supra.

Although counsel have not cited, and we have not found, any prior decisions of this court directly in point on the facts, the principles of law upon which a determination of the instant case must rest and the distinction between governmental and proprietary functions have been exhaustively treated by us in many decisions. Aldrich v. Tripp, 11 R.I. 141; Wixon v. City of Newport, supra; Dodge v. Granger, 17 R.I. 664, 24 A. 100, 15 L.R.A. 781; Blair v. Granger, supra; Hassett v. Thurston, supra; Miller v. Clarke, supra; Prete v. Cray, 49 R.I. 209, 141 A. 609, 59 A.L.R. 1241; City of Providence v. Hall, 49 R.I. 230, 142 A. 156; Gibbons v. Fitzpatrick, 56 R.I. 39, 183 A. 642; Buckhout v. City of Newport, 68 R.I. 280, 27 A.2d 317, 141 A.L.R. 1440.

In Miller v. Clarke, supra, 47 R.I. at page 15, 129 A. at page 607, the court stated the distinction between the governmental function and the proprietary function of a municipality as follows: 'A municipality such as the city of Providence acts in a dual capacity, first as a corporate individual. In the exercise of its powers as such corporation it is generally subject to civil liability for the omission, negligence or misconduct of its officers, servants and agents. Second, the city acts in a public character from which it derives no corporate advantage. This court has approved and applied the generally recognized principle that in the exercise of such public or governmental function a municipality is not subject to civil liability, unless the same is specifically imposed by statute.' See also City of Wooster v. Arbenz, 116 Ohio St. 281, 282, 156 N.E. 210, 52 A.L.R. 518, for a well-considered discussion of the tests applied in ascertaining the distinction between governmental and proprietary functions.

The doctrine of municipal immunity has existed in judicial decisions since the separation of the colonies from England. The immunity is confined to those activities which the municipality undertakes as the agent of the state as distinguished from those which it pursues in its corporate or proprietary capacity. One of the reasons for the rule of municipal immunity is that the municipality, in performing the function of the state as its agent, is entitled to the same immunity that the state would have if it had acted itself. See Cloyes v. Township of Delaware, 23 N.J. 324, 129 A.2d 1, 57 A.L.R.2d 1327. Stated another way, the rule is based upon the ground that the state is sovereign, that the sovereign cannot be sued without its consent, and that the municipality is the mere agent of the state and therefore cannot be sued unless the state gives its consent by legislation. City of Wooster v. Arbenz, supra.

The question before us is the narrow issue of whether the facts in the instant case constitute a governmental function with resulting immunity from civil liability. The correctness of the rulings to which exceptions have been taken and argued before us depends upon a determination of this narrow issue. We shall therefore assume that the operator of the payloader, which vehicle with other municipally owned trucks was engaged in spreading sand on icy city streets, as alleged in the amended special plea and as testified to by defendant's witnesses, was negligent; that his negligence was the proximate cause of the injuries suffered by plaintiff and the damage to her automobile; and that plaintiff was not guilty of contributory negligence.

It is undisputed that at the time of the collision the defendant, through its agents, was engaged in maintaining the streets of the city so that they would be safe and convenient for travelers. As was well said in City of Wooster v. Arbenz, supra, 116 Ohio St....