Opinion
No. 33471.
January 2, 1939.
1. MUNICIPAL CORPORATIONS.
A city in making repairs on its city hall building was acting in its public and not its private capacity, and hence a carpenter, who sustained a broken leg when a scaffold on which he was working fell to the floor, could not maintain an action against city on ground that injury was caused by city's negligence.
2. MUNICIPAL CORPORATIONS.
In the establishment and regulation of schools, hospitals, poor houses, fire departments, police departments, jails, and work-houses, and in the construction of buildings for those purposes, municipalities act in their governmental and not their private capacities, as respects liability for torts.
APPEAL from circuit court of Monroe county; HON. THOS. H. JOHNSTON, Judge.
Geo. T. Chas. S. Mitchell, of Tupelo, for appellant.
It must be conceded that a municipality acts in a dual capacity, sometimes in its governmental capacity, and sometimes in its private or ministerial capacity. By reason of this, considerable confusion has arisen among the different courts in undertaking to establish the line of demarcation between governmental capacity and ministerial capacity and, from this confusion, one would be inclined, at first blush, to think that, if the action of the municipality, in its inception, was of a governmental character, then this same governmental character followed the proposition to its conclusion and that any wrong done or injury inflicted could not be chargeable to the municipality, regardless of how or when the wrong or injury was inflicted. However, upon second thought, we are forced to realize that such a rule cannot be sound reason or sound law. The true distinction is found in 43 Corpus Juris, page 935, where it is said: "In some cases liability has been asserted on the theory that powers which are governmental and discretionary in the beginning become ministerial after such discretion has been exercised and actual work of execution has been commenced."
Bowden v. Kansas City, 66 L.R.A. 181; Toledo v. Cone, 41 Ohio St. 149; Johnston v. District of Columbia, 118 U.S. 19, 30 L.Ed. 75; McClure v. Red. Wing, 28 Minn. 186, 9 N.W. 767; Thurston v. St. Joseph, 51 Mo. 510, 11 Am. Rep. 463; Judd v. Hartford, 72 Conn. 350, 77 Am. St. Rep. 312; McCombs v. Akron, 15 Ohio 474; Barton v. Syracuse, 36 N.Y. 54; Jenney v. Brooklyn, 120 N.Y. 164, 24 N.E. 274.
It is our contention that in deciding upon the feasibility of making repairs upon the city hall, in determining the nature and extent of such repairs, in adopting the plans for such repairs and the labor to be secured in the making of such repairs, the City of Amory acted in its governmental capacity; but, having determined all these things and actually entered upon the work of repairing the city hall, from that time on they were acting in a ministerial or private capacity and the relationship of master and servant between it and its employees arose, and the doctrine of respondeat superior applied.
43 C.J. 952; Johnston v. Chicago, 45 L.R.A. (N.S.) 1167; Chicago v. Siben, 165 Ill. 371, 56 Am. St. Rep. 245, 46 N.E. 244; 4 Dill, Mun. Corp. (5 Ed.), page 1741; 43 C.J. 937; City of Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329; Alexander v. Vicksburg, 58 Miss. 564, 10 So. 62; Semple v. Vicksburg, 62 Miss. 63; Gathman v. Chicago, 19 L.R.A. (N.S.) 1178; Dickenson v. City of Boston, 1 L.R.A. (N.S.) 664.
The immunity extended to legislative or discretionary acts of a municipality does not apply to corporate acts of a purely ministerial character, even though the work being done will inure to the benefit of the municipality.
43 C.J. 929; Semple v. Vicksburg, 62 Miss. 63; 43 C.J. 921, par. 1701; Denver v. Porter, 61 C.C.A. 168, 126 Fed. 293.
J.O. Prude, Jr., of Amory, and D.W. Houston, Sr. Jr., of Aberdeen, for appellee.
There seems to us to be no question about the fact that a town or city hall would come under the same classification as schools, hospitals, jails, work houses, and police stations, for, as a matter of fact, it is well known that town or city halls are established, maintained, and operated without profit or compensation to the city, and in many instances house fire and police departments, as well as police, mayor, and exofficio justice of the peace courts and many other departments, where the necessary businesses of the state, county, and city are carried on, of all of which this court will take judicial notice, and all of which is of great interest to, and benefit of, the public.
A municipal corporation is not liable for negligence in the construction and maintenance of buildings or apparatus used solely for governmental purposes, and this rule applies to a court house and its appurtenances, including the sidewalks adjacent thereto, to a city or town hall, and to other public buildings, such as schoolhouses, police or fire stations, prisons, jails, or workhouses, and hospitals or pesthouses.
43 C.J. 1166, sec. 1932.
There is no question but that it is essential to the proper management or supervision of a city's business to establish, maintain, and operate a town or city hall in which to carry on the business of the city and state; and in order to establish, maintain, and operate such a town or city hall, it is necessary to construct same, and in the construction of same to employ supervisors, foremen, and workmen for that purpose, and in doing so a municipality is in the performance of its governmental functions and is not responsible for the negligence of its employees doing such work.
Bradley v. City of Jackson, 153 Miss. 136, 119 So. 811; City of Hattiesburg v. Geigor, 118 Miss. 676, 79 So. 846; City of Gulfport v. Sheppard, 116 Miss. 439, 77 So. 193; Alexander v. City of Vicksburg, 68 Miss. 564, 10 So. 62; Sutton Dudley v. Board of Police, Carrol County, 41 Miss. 236; Warren v. Town of Booneville, 151 Miss. 457, 118 So. 290.
It appears to us to be clear that if establishing, constructing, and maintaining a public building such as a town or city hall is a governmental function in the beginning, it continues to the end to be such. Once christened it maintains its integrity as such to the end.
43 C.J. 1166, note 21; Goldfarb v. N.Y., 108 Misc. 505, 178 N YS. 541; 43 C.J., pages 952, 953, sec. 1731.
Appellant sued appellee for damages for a personal injury received by him, while engaged as a carpenter in repairing the City Hall of Amory, alleged to have been caused by the negligence of the latter. A demurrer to the declaration was sustained, and, appellant declining to plead further, final judgment was entered dismissing the cause.
Amory is a municipality under the laws of the state. The question involved is whether or not in making the repairs, the city was acting in its governmental capacity, or its private capacity. If the former, there was no liability; while if the latter, there was.
The portion of the declaration necessary to have before us in determining the question follows:
"That on or before May 6, 1937, certain repairs on the City Hall building, the property of said city, became necessary or advisable, and the said defendant, for the purpose of making said repairs. employed one W.A. Stockton as supervisor or foreman to supervise the work on said building and to employ the necessary labor to do said work. That in accordance with the authority given him or conferred upon him by said defendant, the said W.A. Stockton, Supervisor or Foreman as aforesaid, employed plaintiff herein, G.B. Jones, to assist in the carpenter work on said building, and it then and there became and was the duty of the said defendant and its said supervisor or foreman to exercise reasonable care and diligence to furnish the said plaintiff a reasonably safe place in which to do his said work; yet the said defendant, not regarding its duty owing to plaintiff in this behalf, did, through its said supervisor or foreman, direct the said plaintiff to engage in such work thereon as required him to stand on a scaffold furnished by said city and theretofore erected by it. That in the progress of said work and while plaintiff was engaged in doing the work assigned to him by said supervisor or foreman, and while he was standing on the scaffold aforesaid, said scaffold, by reason of being insufficiently constructed and defectively attached to the walls of said building, became detached from the walls of said building and fell to the floor. That the construction of said scaffold and the attaching thereof to the walls of said building was negligently, carelessly and defectively done, and, as a proximate result of said negligence, plaintiff was thrown with great force and violence to the floor below. That the defective construction and attachment of said scaffold to the walls of said building was well known to the defendant and its said supervisor or foreman, or by the exercise of reasonable care and diligence could have been known to them, but the same was unknown to the plaintiff at the time he proceeded to stand thereon and was also unknown to him until the falling of said scaffold as aforesaid.
"That as a proximate result of the negligence of said defendant as aforesaid, and as a proximate result of being thrown to the floor as aforesaid, plaintiff suffered serious and permanent bodily injuries, his right leg being broken just above the ankle, which leg is left in a stiffened condition and will remain in such condition the remainder of his life; he sustained severe and serious bodily bruises, cuts and gashes and other injuries as a result of said fall."
Although there appears to be a difference of opinion on this question among the courts of other jurisdictions, there is none under the decisions of our Court. The city, in making the repairs, was acting in its public, and not its private, capacity. In the establishment and regulation of schools, hospitals, poorhouses, fire department, police departments, jails, workhouses, and the construction of buildings for those purposes, municipalities act in their governmental, and not their private, capacity. Bradley v. City of Jackson, 153 Miss. 136, 119 So. 811; City of Hattiesburg v. Geigor, 118 Miss. 676, 79 So. 846; City of Gulfport v. Shepperd, 116 Miss. 439, 77 So. 193; Alexander v. City of Vicksburg, 68 Miss. 564, 10 So. 62; Sutton and Dudley v. Board of Police of Carroll County, 41 Miss. 236.
Affirmed.