Imágenes de páginas
PDF
EPUB

have known, of the dangerous condition of the approach as described, and attempted to cross it on a load of hay, as averred in the complaint, and met with his death by the wagon slipping off the grade, which was so narrow on top as to be dangerous for travelers and persons to pass and drive over," he was guilty of such contributory negligence as precludes a recovery.

Jonesboro & F. Turnp. Co. v. Baldwin, 57 Ind. 86; Indianapolis v. Cook, 99 Ind. 10; Morrison v. Shelby County Comrs. 116 Ind. 431; Wilson v. Trafalgar & B. County Gravel Road Co. 83 Ind. 326; Albion v. Hetrick, 90 Ind. 545, 46 Am. Rep. 230; Riest v. Goshen, 42 Ind. 339; Wabash, St. L. & P. R. Co. v. Johnson, 96 Ind. 40: Gosport v. Evans, 112 Ind. 133; Horton v. Ipswich, 12 Cush. 488; Lake Shore & M. S. R. Co. v. Pinchin, 112 Ind. 592; Ohio & M. R. Co. v. Walker, 113 Ind. 196.

A county, like a state, is not liable for the negligence of its agents and officers, unless made liable by a statute.

Morris v. Switzerland County Comrs. 131 Ind. 285; Vigo County Comrs. v. Daily, 132 Ind. 73; Smith v. Allen County Comrs. 131 Ind. 116; Cones v. Benton County Comrs. 137 Ind. 404; Parke County Comrs. v. Wagner, 138 Ind. 609; Vermillion County Comrs. v. Chipps, 131 Ind. 56. 16 L. R. A. 228.

The county is only liable when a bridge is so out of repair that it is in fact not what its appearance indicates.

In this case the width of the bridge and its

in the face?" This was not a charge on the fact within the provisions of the Constitution, art. 4, § 26, as the violation would be in the judge deciding a fact about which there was a dispute, and so instructing the jury. Acker v. Anderson County, 20 S. C. 495.

d. By negligence of employee. Counties are not liable to travelers for injuries caused by negligence of employees, in the absence of a statute imposing such liability.

So, the county commissioners were not liable for an 'injury sustained by a person driving on the county road by reason of a tree falling upon him through the negligence of a laborer employed by the road supervisors, under Md. act 1876, chap. 354, authorizing the appointment of a road supervisor by commissioners, who fix the price paid by the supervisors, but do not contract with the laborer. It was held that a laborer employed by the supervisor was not the servant of a county commissioner. Arundel County Comrs. v. Duvall, 54 Md. 350, 39 Am. Rep. 393.

And where a cart driven negligently by a convict of the chain gang collided with plaintiff's buggy the county was not liable. Va. Code 1873, chap. 45, § 13, providing that counties may sue and be sued, did not impose any liability, as this provision applied to contracts. Fry v. Albemarle County, 86 Va. 195. And under S. C. act 1874 (Gen. Stat. 1087), provid- | ing liability for defective highways, causeways, and bridges, a county was not liable for loss of a wagon and mule from the sinking of a ferry boat, as this was not within the terms of the statute. Chick v. Newberry and Union Counties, 27 S. C. 419. II. Injuries to other persons. a. From condition of buildings. 1. Generally.

In the absence of a statute counties are not liable for personal injuries caused by reason of negligence in the construction or maintenance of public buildings.

approaches, their relative height from the ground and the stream, were matters of the original plan, survey, and estimate. The plan was adopted by the board as one in its opinion suitable to the width of the highway, the banks of the stream, the extent of the travel, and all the circumstances; and this political determination of the board cannot certainly be changed at the behest of the circuit court or a petit jury of another county.

The liability must be limited to one class of persons also, to wit, travelers using due care in entering upon and passing over the bridge needing repair.

O'Connell v. Lewiston, 65 Me. 34, 20 Am. Rep. 673; Mauch Chunk v. Kline, 100 Pa. 119, 45 Am. Rep. 364; Schaefler v. Sandusky, 33 Ohio St. 246. 31 Am. Rep. 533; Taylor v. Yonkers, 105 N. Y. 202, 59 Am. Rep. 492.

Messrs. R. W. Marshall, Cummings & Darroch, and Brown & Hall, for appellee:

In Parke County Comrs. v. Wagner, 138 Ind. 609, the court uses the following language: "We are unable to recede from the position of this state upon the question [liability of counties for defective bridges], since that position has been so often assumed that it has become a part of the law of the land,' and if hereafter departed from it must be by legislative direction," and in support of this proposition cites the following cases:

Vigo County Comrs. v. Daily, 132 Ind. 73; Vermillion County Comrs. v. Chipps, 131

So, a county was not liable for personal injuries sustained by reason of the defective construction of its court-house, and the failure to keep it properly lighted at night. It was said that the question is similar to that of liability for a county bridge but that the doctrine of the liability of a county would not be extended. A distinction was made that under the Iowa Code, § 303, the board of supervisors are empowered to build and keep in repair the necessary buildings, and this imposes an involuntary duty to provide a place for holding court. But under the Code, § 303, subd. 18, providing that the board of supervisors shall have power to provide for the erection of bridges which may be necessary to keep the same in repair, the counties are not absolutely required to build any bridge, and when they elect to build a bridge there is a duty incurred which renders them liable for negligence. Kincaid v. Hardin County, 53 Iowa, 430, 36 Am. Rep. 236.

And a county was not liable for injuries caused to a witness in attendance upon court who was injured by reason of negligence in not properly lighting the stairway in the court-house. It was held that Ohio act March 12, 1853, § 7 (Swan's Rev. Stat. 181), providing that the boards of commissioners in the several counties shall be capable of suing and being sued, did not constitute or declare the county or the board of county commissioners a body corporate, and made no provision for claims against the county for torts. Hamilton County Comrs. v. Mighels, 7 Ohio St. 109.

And a county was not liable where the plaintiff, then but eight years old, was injured while attending a school exhibition in the county court-house, and fell from the veranda, which had no railing. It was said that a county is not liable for an injury arising from its neglect, or even its positive act, unless the liability is imposed by statute. Sheppard v. Pulaski County, 13 Ky. L. Rep. 672. In holding that a county was not liable for damages for personal injury caused by negligence in

Ind. 56, 16 L. R. A. 228; Morris v. Switzerland County Comrs. 131 Ind. 285; Smith v. Allen County Comrs. 131 Ind. 116: Fulton County Comrs. v. Rickel, 106 Ind. 501.

This court has frequently had occasion to sustain the doctrine of stare decisis.

Stout v. Grant County Comrs. 107 Ind. 343; Hale v. Matthews, 118 Ind. 527; Fowler v. Wallace, 131 Ind. 349.

The approaches to a bridge are a part of a bridge, which it is the duty of a county to keep in repair as a part of the structure itself.

Huntington County Comrs. v. Huffman, 134 Ind. 4; Driftwood Valley Turnp. Co. v. Bartholomew County Comrs. 72 Ind. 228; State, Winter burg v. Demaree, 80 Ind. 519; Shelby County Comrs. v. Deprez, 87 Ind. 509; Elliott, Roads & Streets, 24.

It is the duty of counties to keep the bridges of the counties in repair, and for failure to do so damages may be recovered for injuries.

House v. Montgomery County Comrs. 60 Ind. 580, 28 Am. Rep. 657; Driftwood Valley Turnp. Co. v. Bartholomew County Comrs. 72 Ind. 226; Shelby County Comrs. v. Deprez, 87 Ind. 509; Madison County Comrs. v. Brown, 89 Ind. 48; Howard County Comrs. v. Legg, 93 Ind. 523, 47 Am. Rep. 390; Allen County Comrs. v. Bacon, 96 Ind. 31; Porter County Comrs. v. Dombke, 94 Ind. 72; Patton v. Montgomery County Comrs. 96 Ind. 131; Vaught v. Johnson County Comrs. 101 Ind. 123; Knox County Comrs. v. Montgomery, 109 Ind. 69; Howard County Comrs. v. Legg, 101 Ind. 479; Wabash County Comrs. v. Pearson. 120 Ind. 426; Sullivan County Comrs. v. Sisson, 2 Ind. App. 317.

the care and control of a court-house, it was said that counties are involuntary corporations organized as political subdivisions for governmental purposes, and not liable for the negligence of its agents unless made so by statute. It was further said there may be little distinction between the duties in regard to bridges and public buildings, but the rule as to bridges would not be extended. Vigo County Comrs. v. Daily, 132 Ind. 73.

Monks, J., delivered the opinion of the court:

This was an action by appellee to recover damages for the death of his intestate, caused, as is alleged, by a defective approach to a bridge over a watercourse. This action was commenced in Jasper county, and the venue changed to the court below. To the complaint, which is in one paragraph, appellant demurred, for want of facts, which was overruled. An answer of general denial was filed. The cause was tried by a jury. A special verdict was returned, and over a motion for a venire de novo, a motion for judgment in favor of appellant on the special verdict, a motion for a new trial, and a motion in arrest, judgment was rendered against appellant for $6,000. Appellant assigns as error the action of the court in overruling the demurrer to the complaint and the motion in arrest of judg

ment.

Appellant earnestly insist that "there is no liability by counties for injuries caused by the negligence of its officers in constructing or in repairing, or failing to repair, bridges over watercourses, for the reason that there is no statute imposing such liability; the overwhelming weight of authority is to the effect that the duty imposed upon counties to keep bridges in repair does not carry with it an implied liability to answer in damages for injuries sustained from defective or unsafe bridges, and that such liability can only arise from express statutory enactment; that the case of Cones v. Benton County Comrs. 137 Ind. 404, in effect overruled the former holdings of this court in Mass. 169, 5 Am. Dec. 35. it was said: "These are in the books sometimes called quasi corporations. Of this description are counties and bundreds in England; and counties, towns, etc., in this state. Although quasi corporations are liable to information or indictment, for a neglect of a public duty imposed on them by law, yet it is settled in the case of Russell v. Devon County, 2 T. R. 667, that no private action can be maintained against them for a breach of their corporate duty, unless such action be given by statute."

In Eastman v. Meredith, 36 N. H. 284, 72 Am Dec. 302, which was an action against a town for personal injuries from a town hall, it was said that "towns and other municipal corporations, includ

For damages caused by maltreatment of a person committed to jail by the ordinary preparatory to being sent to the lunatic asylum, under Ga. Code, § 1864, providing for proceedings to confine a lunatic at the instance of third persons a county, was not liable. It was said that the injured person must sue the jailor, sheriff, or those who mal-ing counties in this state, have power, for certain treated him while in jail. Wilson v. Fannin County, 74 Ga. 818. In this case his limbs were so badly frozen that one leg had to be amputated, and the toes on his other foot were frozen off.

For injuries caused by negligence of the super intendent and building committee appointed by the county board to erect a court-house, where the building fell and killed one of the men, and it was not alleged that the defendants were owners of or had exclusive control of the building, or that the defendants had any power over the plans of the building or the character of the material to be furnished, a recovery was denied because there was no statute imposing a liability. Hollenbeck v. Winnebago County, 95 Ill. 148, 35 Am. Rep. 151.

In Hill v. Boston,122 Mass. 344, 23 Am. Rep. 332, in a city case it was said of earlier cases that they "have ever since been considered as having established in this commonwealth the general doctrine that a private action cannot be maintained against a town or other quasi corporation, for a neglect of corporate duty, unless such action is given by statute." In Riddle v. Proprietors of Locks & Canals, 7

purposes, to hold and manage property, real and personal; and for private injuries, caused by the improper management of their property as such, they have been held to the general liability of private corporations and natural persons that own and manage the same kind of property." (This was not only a dictum, but it is questionable whether this doctrine was ever applied to any county in New Hampshire.)

2. On account of escape from prison. Counties are not liable for escape of prisoners in the absence of a statute imposing a liability. In some states there is such a statute and the early Ohio cases affirmed an implied liability, but these cases were overruled.

Under the Connecticut statute providing that if any person lawfully committed to gaol shall break such gaol and make his escape, by reason of the insufficiency of such gaoi, the damages sustained by persons by reason of such escape shall be paid by the county, and that nothing in this act shall hinder any person from recovering damage of the

[ocr errors]

such cases." It must be admitted that the de- | cided weight of authority in such cases is as stated by appellant. From the numerous de cisions to the effect claimed, we cite the following: Cones v. Benton County Comrs. 137 Ind. 404; Smith v. Allen County Comrs. 131 Ind. 116; Morris v. Switzerland County Comrs. 131 Ind. 285; Vigo County Comrs. v. Daily, 132 Ind. 73; Hollenbeck v. Winnebago County, 95 Ill. 148, 35 Am. Rep. 151; Templeton v. Linn County, 22 Or. 313, 15 L. R. A. 730; Manuel v. Cumberland County Comrs. 98 N. C. 9; White v. Chowan County Comrs. 90 N. C. 437, 47 Am. Rep. 534; Wood v. Tipton County, 7 Baxt. 112, 32 Am. Rep. 561; Brabham v. Hinds County Supers. 54 Miss. 363, 28 Am. Rep. 352; White v. Bond County, 58 Ill. 297, 11 Am. Rep. 65; Hedges v. Madison County, 6 Ill. 567; Lorillard v. Monroe, 11 N. Y. 392, 62 Am. Dec. 120; Askew v. Hale County, 54 Ala. 639, 25 Am. Rep. 730; Granger v. Pulaski County, 26 Ark. 37; Downing v. Mason County, 87 Ky. 208; Reardon v. St. Louis County, 36 Mo. 555; Swineford v. Franklin County, 73 Mo. 279; Clark v. Adair County, 79 Mo. 536; Gilman v. Contra Costa County, 8 Cal. 52, 68 Am. Dec. 290, and note on pages 294 and 295; Barnett v. Contra Costa County, 67 Cal. 77: Scales v. Chattahoochee County, 41 Ga. 225: Marion County Comrs. v. Riggs, 24 Kan. 255; Fry v. Albemarle County, 86 Va. 195; Watkins v. Preston County Ct. 30 W. Va. 657; Woods v. Colfax County Comrs. 10 Neb. 552; Hamilton County Comrs. v. Mighels, 7 Ohio St. 109; Baxter v. Winooski Turnp. Co. 22 Vt. 123, 52 Am. Dec. 84; Ward v. Hartford County, 12 Conn. 404; persons or out of the estate of such persons who shall break or be aiding or assisting in breaking the gaol or who shall escape, a county was liable for an escape, and it was no defense that the escape was effected through the aid of persons outside, or that the plaintiff could have sued those aiding, where they were insolvent, and plaintiff had no knowledge of them at the time of this suit, and it was not shown that the prisoner had an estate, or that the prisoner was recaptured after suit, or that detention would not avail plaintiff. Clark v. Litchfield County, Kirby, 318. [Note by reporter: "This de-edy for a sheriff to hold the county liable for damcision was afterwards reversed in the supreme court of errors."]

Niles Twp. Highway Comrs. v. Martin, 4 Mich. 557; Adams v. Wiscasset Bank, 1 Me. 361, 10 Am. Dec. 88; Mitchell v. Rockland, 52 Me. 118; Altnow v. Sibley, 30 Minn. 186, 44 Am. Rep. 191; Dosdall v Olmsted County, 30 Minn. 96, 44 Am. Rep. 185; Sussex County Chosen Freeholders v. Strader, 18 N. J. L. 108, 35 Am. Rep. 530; Cooley v. Essex Chosen Freeholders, 27 N. J. L. 415; Young v. Commissioners of Roads, 2 Nott & M'C. 537; Farnum v. Concord, 2 N. H. 392; Eastman v. Meredith, 36 N. H. 284, 72 Am. Dec. 302; Morey v. Newfane, 8 Barb. 645; Heigel v. Wichita County, 84 Tex. 392, 31 Am. St. Rep. 63, and note on pages 65 and 66; Ensign v. Livingson County Supers. 25 Hun, 20; Albrecht v. Queens County, 84 Hun, 399; Smith v. Carlton County Comrs. 46 Fed. Rep. 340; Barnes v. District of Columbia, 91 U. S. 540, 23 L. ed. 440; Bailey v. Lawrence County, 5 S. D. 393; Cooley, Const. Lim. 6th ed. 801; 1 Dill. Mun. Corp. §§ 25, 26; 2 Dill. Mun. Corp. § 996, 997, 999; 4 Am. & Eng. Enc. Law, pp. 364-367, and notes; 15 Am. & Eng. Enc. Law, pp. 1143, 1144, and cases cited in note; 1 Beach, Pub. Corp. § 734; Tiedeman, Mun. Corp. $325. By common law, the inhabitants of a county were required to repair bridges over watercourses. Carroll County Comrs. v. Bailey, 122 Ind. 46, 48; State v. Gorham, 37 Me. 451; State, Whitall, v. Gloucester County Chosen Freeholders, 40 N. J. L. 302; State v. Hudson County, 30 N. J. L. 137; Rex v. Oxfordshire, 16 East, 223. Yet it is settled law that counties were not liable at common law for injuries caused by their negligence in failing to keep such bridges in repair. Cones | could not have got out unless he had bad assistance from some person outside. Paul v. Tolland County, 2 Root, 196.

And the county was liable for the escape of a debtor by reason of insufficiency of the gaol, under the Connecticut statute providing that if any person lawfully committed to any gaol shall break such gaol and make his escape, the county shall pay all damages. Dutton v. Litchfield County, 1 Root, 450.

So, a county was held liable for special damages caused by the escape of a prisoner through the insufficiency of the "gaol" on execution of the debt. Staphorse v. New Haven County, 1 Root, 125; Haw. ley v. Litchfield County, 1 Root, 155; Dennie v. Middlesex County, 1 Root, 278; Murray v. Bishop, and Smith v. County Treasurer, 1 Root, 357.

In Sheldon v. Litchfield County, 1 Root, 158, it was said that an action against a county for a prisoner escaping through insufficiency of the gaol was under a statute.

And the county was liable under special damages for the insufficiency of a gaol, whereby a party who had been imprisoned for debt made his escape. Williams v. New Haven County, 2 Root, 23.

But a county was not liable for the escape of a prisoner confined for horse stealing, where it was shown the gaol was sufficient, and the prisoner

[ocr errors]

In Ward v. Hartford County, 12 Conn. 404, it was said that the only case in which provision is made for redress against a county is where a debtor escapes from prison through the insufficiency of the gaol. "The creditor, by an application to the county court, may procure an order for payment of his debt. [Conn.] Stat. 256, title 42, § 24."

A mandamus was held to be not the proper rem

ages which he was compelled to pay for an escape, under a ca. sa. owing to the insufficiency of the jail. Governor, Haygood, v. Clark County Inferior Ct. Justices, 19 Ga. 97.

But it was further held in this case that a county was not liable for the escape of a prisoner under a ca. sa. owing to the insufficiency of the jail. It was said that a county is a corporation of the municipal kind or it is not, and if it is a municipal corporation it is not liable for the conduct of the inferior court in not providing a more efficient jail, where it is not shown that they have funds to make it more secure, and a municipal corporation is not liable for the acts or omissions of its officers. The court held that if it was not a municipal corporation it could not have an agent. Governor, Haygood, v. Clark County Inferior Ct. Justices, 19 Ga. 97.

In Haygood v. Inferior Ct. Justices, 20 Ga. 845, on the return of this case to the lower court an amendment setting up that the justices of the inferior court had funds on hand sufficient to repair the jail was denied, and it was held that the sheriff could not recover as he was the legal custodian of the jail, and if it was unsafe it was wrong for him to imprison the debtor there, and if the jail was wholly insufficient it was the same thing as if there

v. Benton County Comrs. 137 Ind. 404, and | Pa. 543, 1 L. R. A. 607, and all authorities authorities heretofore cited. It is a well- cited on the proposition concerning bridges. settled proposition that, when subdivisions In Vermillion County Comrs. v. Chipps, 131 of a state are organized solely for a public Ind. 56, 16 L. R. A. 228, this court said: "The purpose by a general law, no action lies decided weight of authority is that, in the abagainst them for an injury received by any sence of a statute upon the subject, a county is one on account of the negligence of the of not liable for a failure to keep its bridges in reficers of such subdivision, unless a right of pair. Elliott, Roads & Streets, p. 42." It was action is expressly given by statute; that such held by this court in Smith v. Allen County subdivisions, as counties and townships, are in- Comrs. 131 Ind. 116, that a county is not liable strumentalities of government, and exercise for an injury to a servant sustained without authority given by the state, and are no more his fault while engaged in tearing down one liable for the acts or omissions of their officers of its bridges, although he worked under the than the state. Cones v. Benton County Comrs. immediate charge of its agent, who was known 137 Ind. 404; Morris v. Switzerland County by the board of commissioners to be incompeComrs. 131 Ind. 285; Vigo County Comrs. v. tent, which incompetency was the proximate Daily, 132 Ind. 73; Smith v. Allen County cause of the injury. The court said: “A Comrs. 131 Ind. 116; White v. Sullivan County county is a civil or political division of the Comrs. 129 Ind. 396; Abbett v. Johnson County state, created by general laws to aid in the adComrs. 114 Ind. 61, cases cited on page 63; ministration of the government, and in the abFreel v. Crawfordsville School City, 142 Ind. 27, sence of a statute imposing special duties with 37 L. R. A. 301; Summers v. Daviess County corresponding liabilities, is no more liable for Comrs. 103 Ind. 262, 53 Am. Rep. 512; Greene the tortious acts or negligence of its officers County Comrs. v. Boswell, 4 Ind. App. 133; Ed- and agents than the state." In Morris v. gerly v. Concord, 62 N. H. 8; Goddard v. Switzerland County Comrs. 131 Ind. 285, this Harpswell, 84 Me. 499, 30 Am. St. Rep. 373, court held that a county was not liable in an and note on pages 398-402; Howard v. Worces- action for damages resulting from a failure of ter, 153 Mass. 426, 12 L. R. A. 160; Larrabee the board of commissioners to keep the jail in v. Peabody, 128 Mass. 561; Clark v. Waltham, a healthy and inhabitable condition. The 128 Mass. 567; Hill v. Boston, 122 Mass. 344; court said: "The most logical and generally Wixon v. Newport, 13 R. I. 454, 43 Am. Rep. accepted theory is, that political subdivisions,. 35; Finch v. Toledo Bd. of Edu. 30 Ohio St. 37, such as counties and townships, are created to 27 Am. Rep. 414: Lane v. Woodbury District give effect to and enable citizens to exercise Twp. 58 Iowa, 462; Flori v. St Louis, 69 Mo. the right of local self government. State, Holt, 341, 33 Am. Rep. 504; Bigelow v. Randolph, 14 v. Denny, 118 Ind. 449, 4 L. R. A. 65; White Gray, 541; Ford v. Kendall School Dist. 121 v. Sullivan County Comrs. 129 Ind. 396. Such

had been no jail. It was said he ought to have con- | visors,authorizing them to elect a warden, and Laws veyed the debtor to the jail of the adjoining county 1870, chap. 633, making it the duty of the trustees to and delivered him to the jailor there.

In Brown County Comrs. v. Butt, 2 Ohio, 348, it was held that a county was liable to a sheriff who had been mulcted in damages for an escape of a debtor owing to the insufficiency of the county jail. It was said that if it was a new question it would have been proper that the action should have been against the county in the first instance to avoid circuity of action for damages for an escape of a debtor from an insufficient jail. But this case was overruled in Hamilton County Comrs. v. Mighels, 7 Ohio St. 109.

[ocr errors][ocr errors][ocr errors]

determinine whether an inmate was a charge upon the town, or the city of Rochester or upon the county, as the warden and trustees were in no sense the agents of the county but were public officers. It was also held that the county would not be made liable by caring for insane patients not residing in the county under a contract, or by deriving a revenue in small amount from surplus farm products. The county was held to be a quasimunicipal corporation, and the law of 1892, which provided that a county is a municipal corporation, did not apply because the injury was committed before its enactment. This case is in accord with the authorities generally.

In Richardson v. Spencer, 6 Ohio, 13, where a sheriff was sued for the escape of a prisoner taken on an execution, it was held that where the escape So, a county was not liable where injuries were resulted from the insufficiency of the jail the sher-caused to a servant in the employ of the county iff was liable in the first instance to the plaintiff on working under the personal superintendence of execution, and a recovery against him clothed him one of the board of commissioners in tearing down with power to coerce indemnity from the county. a bridge, although it was charged that the superinIn Hamilton County Comrs. v. Mighels, 7 Ohio St. tendent was incompetent, inexperienced, and negli109, the case of Brown County Comrs. v. Butt, 2 gent. Smith v. Allen County Comrs. 131 Ind. 116. Ohio, 348, and the dictum of Richardson v. Spencer, 6 Ohio, 13, were overruled.

For prisoner's right of action for imprisonment in unhealthful or unfit prison, see Shields v. Durham (N. C.) 36 L. R. A. 293, note.

b. By negligence or wrongful act of employee. Counties are not liable for personal injuries caused to persons by reason of negligence or tort of employee.

In the case of HUGHES V. MONROE COUNTY it was held that the county of Monroe was not liable for injuries caused by the operation of a laundry machine, whereby an employee of the County Insane Asylum was injured, under N. Y. Laws 1363, chap. 82, placing the asylum under the board of super

Nor where a convict in the penitentiary was required to work at a circular saw, and he alleged that the injury was occasioned by the illegal and negligent acts of the defendant in compelling him to approach the saw, and in not providing proper means for the execution of the business of the penitentiary. Alamango v. Albany County Supers. 25 Hun, 551.

[ocr errors]

Nor where an employee of an independent contractor of defendant while carrying lumber to a bridge was injured by reason of a negligent blast of dynamite. It was said that counties are subordinate political divisions of a state, and are not liable for torts of their officers unless made so by statute. Smith v. Carlton County Comrs. 46 Fed. Rep. 340.

[ocr errors]

adopted, of an implied liability, is not in har-
mony with the great weight of authority,
ancient and modern.
The liability
did not exist at common law, and does not ex-
ist by statute with respect to bridges or high-
ways, and the objections to liability are well
stated in Hollenbeck v. Winnebago County, 95
Ill. 151, 35 Am. Rep. 151, as follows: 'No
reason is perceived why a county should be
held to respond in damages for the negligence
of its officers while acting in the discharge of
public corporate duties enjoined upon them by
the laws of the state
clothed with
but few corporate powers, and these not of a
private .
character. . . In fact,
the powers and duties of counties bear such a
due analogy to the governmental functions of
the state at large that as well might the state
be held responsible for the negligent acts of
its officers as counties.'
It will be
found that the authorities upon which cities.
and towns, as municipal corporations, are held
liable for the results of the negligence of offi-
cial duties make this distinction: That such
municipalities are voluntary corporations or-
ganized for corporate purposes, and possessing
legislative, administrative, and judicial func-'
tions not possessed, to the same degree by
counties or townships, and that they exercise.
and enjoy advantages purely local and which
are independent of the state, and inure to their
benefit as distinguished from that of the state.
We are aware that profound jurists do not
agree with the doctrine that cities and towns
are less governmental subdivisions of the state
than counties or townships; but, aside

subdivisions are instrumentalities of govern- | ment and exercise authority delegated by the state and act for the state. As the state is not liable for the acts or omissions of its officers, neither should a political subdivision of the state be liable for the acts or omissions of its officers as relating to political powers." White v. Sullivan County Comrs. 129 Ind. 396, and Summers v. Daviess County Comrs. 103 Ind. 262, are to the same effect. This court held in Vigo County Comrs. v. Daily, 132 Ind. 73, that a county is not liable for damages occasioned by the negligence and carelessness of the board of commissioners in the care and control of the court-house. The court said: "It is now well settled that counties are involuntary corporations, organized as political subdivisions of the state for governmental purposes, and not liable, any more than the state would be liable, for the negligence of its agents or officers unless made liable by statute." In Cones v. Benton County Comrs. 137 Ind. 404, this court held that a county could not be held liable for personal injuries sustained while traveling upon a free gravel road of the county, and by reason of the defects in the construction and repair of such road. The court also expressly declared that the county was not liable at common law for the negligence of its officers, and that no liability existed by statute with reference to bridges. The court said: "It is quite true that the principle adopted in the bridge cases is in perfect analogy to the case before us, and if we would be consistent, those cases would control the present; but we are fully convinced that the principle there. And a county was not liable for negligence in | given by the statute." It was further said: "In not appointing a guardian for, and in not confining, a party who had been found by inquisition to be of unsound mind, who was allowed to run at large and kill her husband. Miller v. Iron County, 29 Mo. 122.

Nor for damages and unskilful treatment received by an indigent sick person while in the county hospital. Sherbourne v. Yuba County, 21 Cal. 113, 81 Am. Dec. 151.

And no recovery could be had for damages caused by negligence of the county physician for the poor in a surgical operation, where it was not shown that the board of commissioners did not exercise care and diligence in his selection. Summers v. Daviess County Comrs. 103 Ind. 262, 53 Am. Rep. 512.

[ocr errors]

the case at bar, the county of St. Louis was not engaged in the discharge of duties imposed alike by general law on all counties: duties whose performance, if neglected, might have been enforced by appropriate procedure for that purpose; but in the discharge of a self-imposed duty not enjoined by any law. And the test of the latter is this: That the county could not have been compelled to enter on the work for whose performance it contracted."

This injury occurred in 1872, and in 1876 under the Constitution the county of St. Louis became the city of St. Louis or the two corporations were consolidated with double functions, as shown by State, Beach, v, Finn, 4 Mo. App. 347.

III. Injuries to real property from public improve

ments.

a. Generally.

And a county was not liable for injuries caused by one of the guards unlawfully beating a convict in the chain gang, or for the negligence of the rest of the guards in not protecting the convict from the unlawful beating. Hammond v. Rich-liable for injuries to property by reason of bridges, mond County, 72 Ga. 188.

But in Hannon v. St. Louis County, 62 Mo. 313, a county was held liable for negligence in constructing a sewer to the county insane asylum under the superintendence of the county engineer who was present directing the work, where by neglect of the contractor and of the engineer the edge caved in, killing a son of the plaintiff.

In Hannon v. St. Louis County, 62 Mo. 313, it was said: "It would be foreign alike to our purpose and the facts admitted by the demurrer, to question the correctness of the proposition so generally concurred in elsewhere, asserted in Reardon v. St. Louis County, 36 Mo. 555, that quasi corporations, created by the legislature for the purposes of public policy, are not responsible for the neglect of duties enjoined on them, unless the action was

The weight of authority is that a county is not

roads, drains, and the like being improperly constructed or out of repair or creating a nuisance.. But some cases allow a recovery where a constitutional right is invaded, as where it can be construed to be a taking of private property without compensation, or where the Constitution provides compensation for property damaged.

The cases denying a liability for damages to real property are as follows, and will be found below under the appropriate subheads:

A county was not liable for a nuisance arising from a defective ditch causing overflow. Dashner v. Mills County, 88 Iowa, 401; Green v. Harrison County, 61 Iowa, 311; Nutt v. Mills County, 61 Iowa, 754.

Nor where the bridge abutment diverted thewater and washed away land, prior to the Califor-.

« AnteriorContinuar »