Summary
In Bates v. City of McComb, 181 Miss. 336, 179 So. 737, it is said: "A city's employment of an incompetent or vicious person who is subsequently guilty of a tort while engaged in discharge of a governmental duty * * * does not make city liable for his acts and if city is not liable in the first instance, it cannot be made liable by ratification."
Summary of this case from Greenwood v. City of LincolnOpinion
No. 33114.
March 21, 1938.
1. MUNICIPAL CORPORATIONS.
In administratrix' action against city for death of intestate, declaration alleging that general employee hired by commission council while in discharge of his duties as an inspector of equipment and appliances of automobiles unlawfully and negligently shot intestate was demurrable, since city is not liable for torts of its officers or agents or employees while engaged in performing duties pertaining to or within city's police power and it is immaterial that city is acting under commission form of government.
2. MUNICIPAL CORPORATIONS.
A city's employment of an incompetent or vicious person who is subsequently guilty of a tort while engaged in discharge of a governmental duty or city's failure to require a bond of such person does not make city liable for his acts and if city is not liable in the first instance, it cannot be made liable by ratification.
3. JUDGMENT. Negligence.
A general averment of negligence in doing or omitting a particular act, unless it is too general to give defendants reasonable notice of negligence charged, is good as against a general demurrer for want of sufficient facts or a motion in arrest of judgment, since, under those allegations, facts constituting negligence may be shown.
4. PLEADING.
Under statutes, where declaration shows a cause of action in a general way, but allegations are indefinite or uncertain so that precise nature of complaint is not apparent, remedy is not by demurrer but by motion (Code 1930, sections 521, 553-555).
5. PLEADING.
In action against city and codefendant for unlawful killing of decedent by city's employee while in discharge of his duties where complaint alleged that codefendant was present and aided and abetted and assisted in commission of tort, insufficiency of complaint to state a cause of action against codefendant could not be reached by demurrer but only by motion (Code 1930, sections 521, 553-555).
APPEAL from the circuit court of Pike county. HON. J.F. GUYNES, Judge.
F.D. Hewitt, of McComb, for appellant.
A demurrer admits all of the facts pleaded in the declaration.
Bradley v. City of Jackson, 119 So. 811.
The declaration charges that Thomas was acting for said city in a corporate capacity, and in the discharge of his duties as agent and servant of the city. The demurrer admits this to be true. The demurrer admits that he not only shot and killed the deceased while in the discharge of his duties as an employee in a corporate capacity, but it admits that the mayor and commission council ratified his acts. The question of ratification is a question of fact to be determined by the jury. The declaration states a cause of action against both of the defendants.
A declaration is sufficient if it states a good cause of action, however informal it may be or by whatever name it be designated.
Coopwood v. McCandless, 99 Miss. 264, 54 So. 1007; Sec. 521, Code of 1930; Interstate Co. v. McDaniel, 173 So. 165.
We submit that if a city which is governed by the same laws as an ordinary corporation in matters of this kind can escape liability on acts alleged in this declaration that the employee, Thomas, was acting in a corporate capacity within the scope of his employment, and in the discharge of his duty assigned to him, reappointed to office at a time when the commission council knew that he had committed acts of violence and was an untrustworthy servant, with general powers to rove the city like an armed bandit, and follow one of its citizens to his own home and there without provocation shoot him down and take his life, still acting within the scope of his authority, and then to have the city ratify all of his acts, doing everything it could to relieve him of the responsibility and consequence, retaining him in the service, collecting a fund from its employees, defending him by its own counsel at the taxpayers' expense, and in every respect ratifying his negligent and unlawful acts, then a city can never be made liable, or never would be held liable for any acts in damages on account of the negligence of its agents, servants and employees.
Forrest B. Jackson, of Jackson, and Price McLain, of McComb, for appellees.
The appellee takes the position that the declaration affirmatively shows that Thomas was acting as a policeman, engaged at the time of the killing solely in his duties of enforcing the police regulations of said city, and was performing no corporate duties, but duties arising solely out of the governmental capacity and functions of the City of McComb City. Further, that in the matter of acting with Doll Boyd Winborn, for the purpose of obtaining her car keys, Thomas was acting in a private capacity, and beyond the scope of his employment by said City; that is to say, if the declaration is construed as meaning that Thomas was simply accommodating Mrs. Winborn in securing her keys. Under the averments of the declaration, however, and the logical inference drawn therefrom, a reasonable construction is that the deceased had pilfered, or was unlawfully holding, Mrs. Winborn's car keys, and that Thomas, in his efforts to secure same, was acting solely as a policeman in enforcing the penal statutes and police regulations of said City, and was acting for said City in a governmental capacity. In any event the City is not liable.
The appellee takes the further position that the City of McComb City, Mississippi, is not liable for the alleged wrongful acts of Thomas in enforcing police regulations, and that said City has no power to authorize wrongful acts on the part of its police officers, and has not the power to ratify or adopt such acts, whether he was acting as police officer or on a private mission of his own.
A municipal corporation is not liable for acts of officers while in the performance of governmental duties and functions.
City of Meridian v. Beeman, 175 Miss. 527, 166 So. 757; Bradley v. City of Jackson, 153 Miss. 136, 119 So. 811.
A municipality is not liable for torts of officers and agents in attempt to enforce ordinances and other regulations adopted under police powers.
Bradley v. City of Jackson, 153 Miss. 136, 119 So. 811.
The City cannot be held liable for Thomas's acts in shooting and killing the deceased, if, at the time, he was attempting to get a bunch of keys belonging to Mrs. Doll Boyd Winborn, if said act was beyond the scope of his employment, and if he was acting on a private mission while so engaged.
A public corporation is liable only for authorized acts of officers.
Dick v. Atchflaya Dr. Levee Dist., 147 Miss. 783, 113 So. 897.
It is a general rule that a municipal corporation is not liable for the wrongful acts of its officers and agents outside of the scope of their employment, even though done colore officii, and an official act on the part of an officer at the instance of private persons will not render the corporation liable.
43 C.J., page 942, sec. 1719, and pages 944-945, sec. 1720.
It has been held that a municipal corporation is not liable for the acts of its officers in maliciously, and without probable cause, instituting a criminal prosecution, etc., nor for a wrongful assault or false imprisonment by such an officer.
43 C.J. 949, sec. 1719.
Where the city authorities have no power to authorize an act to be done, neither have they the power to adopt the act after its commission.
43 C.J. 945-946, sec. 1721.
Municipalities are not liable for police officers' assaults, trespasses or negligent acts while acting in the performance of governmental functions.
43 C.J., pages 965-967, sec. 1745, and page 969, sec. 1756.
Punitive damages against a municipality cannot be allowed.
Town of Newton v. Wilson, 128 Miss. 726, 91 So. 419.
Argued orally by F.D. Hewitt for appellant and by Forrest B. Jackson, for appellee.
Appellant, as administratrix of the estate of Howard Lee Bates, deceased, filed her declaration against the city of McComb and Mrs. Doll Boyd Winborn as alleged joint tort-feasors, and to state portions in brief and to quote another portion, the declaration charged as follows:
That the city had employed one Thomas as a general employee to perform any and all such duties as should be required of him by the commission council of the city. That the said Thomas was known to the council to be an incompetent, untrustworthy, unsafe, and violent person, yet was so employed, and allowed to go armed and in the performance of police duties, and other duties, without bond.
That on the 16th day of January, 1934, the said Thomas "while in the discharge of his duties required of him by said laws and ordinances, acting within the scope of his authority as an employee agent, and servant of the city of McComb City, Pike county, Mississippi, and in company with Mrs. Doll Boyd Winborn, defendants, and acting together while on an inspection tour and in the discharge of his duties as an inspector of the equipment and appliances of automobiles in the manner and method of parking the same, and handling of said automobiles and waiting on people and in the performance of his duty, and investigation of matters occurring within the corporate limits of said city, went in company with the defendant Mrs. Doll Boyd Winborn, to the home of the said Howard Lee Bates, deceased, on South Magnolia street, in McComb, Mississippi, for the purpose of inspecting said automobile and appliances and for the purpose of getting a bunch of keys belonging to the defendant Mrs. Doll Boyd Winborn, and for the purpose of admonishing him about the rules and regulations governing automobiles in said city, and for the purpose of obtaining information as an employee of the defendant city of McComb City, and while inspecting the lights and brakes of said automobile and getting the keys of the car of the defendant Mrs. Doll Boyd Winborn, and while so inspecting the lights and brakes of the automobile of Howard Lee Bates, and securing information and investigating the conduct of said Bates, acting within the scope of his employment as an employee of said city, and while acting jointly with the defendant Mrs. Doll Boyd Winborn being aided, assisted and abetted by her, he the said Thomas, agent, servant and employee of the defendant city of McComb City did unlawfully and negligently shoot and kill the said Howard Lee Bates."
And it is further charged that the city council, with full knowledge of all the facts, subsequently ratified the conduct of said employee.
The defendants separately demurred to the declaration; their demurrers were sustained; plaintiff declined to amend; the action was dismissed, and plaintiff has appealed.
It will be seen from the quoted portion of the declaration that the duties being performed at the time of the alleged tort were in respect to matters pertaining to, or within, the police power of the city. It has been so long settled in this state, as well as in the general law everywhere, as not to be open now to further discussion, that a municipality is not liable for torts of its officers or agents or employees while engaged in that branch of their duties. And it is immaterial that the city was acting under the so-called commission form of government. Bradley v. City of Jackson, 153 Miss. 136, 119 So. 811.
The employment of an incompetent or vicious person, who is subsequently guilty of a tort while at the time engaged in the discharge of a governmental duty, does not make the city liable; nor does the failure to require of him a bond; nor can the city be made liable by ratification, where not liable in the first instance. These propositions are sufficiently stated in 43 C.J. pp. 964-967.
Appellant places some reliance on City of Meridian v. Beeman, 175 Miss. 527, 166 So. 757, but all that case holds is that where an officer or agent of the city is employed in capacities which are dual in their nature and upon the facts it cannot be told in what capacity the agent is acting at the time of the tort, his agency will be ascribed to that which is corporate rather than governmental. The opinion was carefully guarded so as not to include a case, as is the case here, where the specific facts show that, at the time, the agent or employee was engaged in a governmental function. The demurrer was properly sustained as to the city.
Little is said in the briefs about the demurrer of the other defendant, Mrs. Winborn. We doubt that any distinction was pointed out in the argument before the trial judge. As to Mrs. Winborn, the allegations are in the most general terms: That the tort was unlawfully and negligently committed and that Mrs. Winborn was present and aided, abetted, and assisted therein. Under the common law, the declaration would have been subject to a special demurrer because of want of definiteness in allegation; but special demurrers have been abolished in this state in actions at law, and the defect mentioned can now be reached only by motion.
As stated in 45 C.J. p. 1079, "It is a well established rule that a general averment of negligence in doing or omitting a particular act, unless it is too general to give defendants reasonable notice of the negligence charged, is good as against a general demurrer for want of sufficient facts, or a motion in arrest of judgment, since, under these allegations, the facts constituting the negligence may be shown." And the succeeding section of the text, p. 1080, goes on to state that averments of the particulars of the negligence may be required by motion. The concluding paragraph of the opinion in Hastings-Stout Co. v. J.L. Walker Co., 162 Miss. 275, 285, 139 So. 622, 624, is therefore to be brought forward as applicable here. The court said: "The demurrer attempted to raise the point, as one among its causes, that the language of the declaration is vague, indefinite, and ambiguous. Special demurrers are abolished in actions at law, section 553, Code 1930; and it is provided by section 521, Code 1930, that, if the declaration 'contains sufficient matter of substance for the court to proceed upon the merits of the cause, it shall be sufficient.' The remedy in respect to uncertainty and the like is found in sections 554 and 555, Code 1930. Where the declaration shows, though in a general way, a cause of action, but the allegations are indefinite or uncertain so that the precise nature of the complaint is not apparent, the remedy is not by demurrer, but by motion, under the sections of the statutes last cited. Jones v. Millsaps, 71 Miss. 10, 14 So. 440, 23 L.R.A. 155."
The demurrer by Mrs. Winborn of no stated cause of action as to her should have been overruled.
Affirmed as to the city; reversed and remanded as to Mrs. Winborn.