Mississippi Supreme Court, 1936

City of Meridian v. Beeman

Mississippi Supreme Court · Decided March 30, 1936 · Griffith, Smith

166 So. 757; 175 Miss. 527; 1936 Miss. LEXIS 38 (Southern Reporter)

Counsel

Howard Westbrook, of Meridian, for appellants. The defendant Robbins at the time of the accident was a "public officer," serving the municipality in its governmental rather than corporate capacity. Sections 2406 and 2436, Code of 1930; Monet v. Jones, 18 Miss. (10 S. M.) 237; Macon v. Patty, 57 Miss. 378 , 34 Am. Rep. 451; Shelby v. Alcorn, 36 Miss. 273 , 72 Am. Dec. 169; City of Hattiesburg v. Beverly, 86 So. 590; Ex parte Bourgeois, 60 Miss. 663 , 45 Am. Rep. 420; Gilmore v. Salt Lake City, 13 Ann. Cas. 1016; Dube v. Montreal, Ann. Cas. 1913A, 468; Haney v. Gofran, Ann. Cas. 1917B, 664; State v. Edwards, 38 Mont. 250 , 99 P. 940; Roumbos v. Chicago, 163 N.E. 361 ; Burch v. Hardwicks, 30 Grat. 24, 32 Am. Rep. 640; Blynn v. Pontiac, 185 Mich. 35 , 151 N.W. 681; Farrell v. Bridgeport,; Brown v. Russell, 43 N.E. 1005, 55 Am. St. Rep. 357, 32 L.R.A. 253. In a number of cases constitutional and statutory provisions with respect to public officers have been construed as applicable to policemen, thus impliedly treating them as public officers. Monette v. State, 81 Miss. 662 , 44 So. 989; Johnson v. State, 132 Ala. 43 , 31 So. 493; Pennie v. Reis, 80 Cal. 266 , 22 P. 176; Sullivan v. Bridgeport, 81 Conn. 660 , 71 A. 906 ; Healy v. Hillsboro County, 70 N.H. 588 , 49 A. 89 ; Mangam v. Brooklyn, 98 N.Y. 585 , 50 Am. Rep. 705; Cleveland v. Payne, 72 Ohio St. 347 , 74 N.W. 177, 70 L.R.A. 841. In actions brought under the rule that where a public officer has a legal right to his office, this right carries with it, as incident thereto, the salary of the office, the courts have impliedly recognized police officers as public officers. Larson v. St. Paul, 83 Minn. 473 , 86 N.W. 459; State v. Wallridge, 153 Mo. 194, 54 S.W. 477; Section 2434, Code of 1930. The City of Meridian is not liable for any damages in this case, because it was injury occasioned by one of its officers and agents, attempting to carry out and enforce its ordinances and regulations adopted by it in the exercise of its police powers in a governmental capacity. Bradley v. City of Jackson, 153 Miss. 136 , 119 So. 811 ; City of Gulfport v. Sheppard, 116 Miss. 439 , 77 So. 193; Alexander v. Vicksburg, 68 Miss. 564 , 10 So. 62; Section 3329, Code of 1906, as amended by chapter 274, Laws of 1926, Hemingway's Code of 1927; Warren v. Town of Booneville, 151 Miss. 457 , 118 So. 290 ; 19 R.C.L. 1119, sec. 399; 28 Cyc. 1299; Dillion Municipal Corporations (5 Ed.), 1656; McQuillin Municipal Corporations (2 Ed.), sections 2591 and 2431, page 405; McCarter v. Florence, 112 So. 335 ; Campbell's Admx., v. Montgomery, 53 Ala. 527 , 25 Am. Rep. 656; Ready v. Tuscaloosa, 6 Ala. 227 ; Grumbine v. Washington, 2 MacArthur, 578, 29 Am. Rep. 262; McElroy v. Albany, 65 Ga. 387 , 38 Am. Rep. 791; Harris v. Atlanta, 62 Ga. 290 ; Cook v. Macon, 54 Ga. 468 ; Clark v. Chicago, 159 Ill. App. 20 ; Evans v. Kankakee, 231 Ill. 223 , 83 N.E. 223, 13 L.R.A. (N.S.) 1190; Peters v. Linsborg, 40 Kan. 654 , 20 P. 490; Altvater v. Baltimore, 31 Md. 462 ; Hathway v. Everett, 205 Mass. 246 , 91 N.E. 296 ; Worley v. Columbia, 88 Mo. 106; Woodnull v. New York, 150 N.Y. 450 , 44 N.E. 1038 ; McIllhenney v. Wilmington, 127 N.C. 146 , 37 S.E. 187 , 50 L.R.A. 470; Miller v. Hastings, 25 Pa. Sup. Ct. 596; Shultz v. Milwaukee, 49 Wis. 245 , 5 N.W. 342, 35 Am. Rep. 779; Clark v. Atlantic, 180 Fed. 598; Stater v. Joplin, 189 Mo. App. 383, 176 S.W. 241; Evans v. Berry, 186 N.E. 205; Aldrich v. Youngstown, 140 N.E. 164, 27 A.L.R. 1498; Christ Hansen v. Berry City of Fargo, 209 N.W. 1002 ; Devers v. Scranton, 308 Pa. 13 , 161 A. 540 ; Tompkins v. Williams, 54 S.W.2d 70, 42 S.W.2d 106 ; McQuillin Municipal Corporations 2d, secs. 2793, 2801, 2796; Joliff v. City of Shreveport, 80 So. 200; Wilcox v. Rochester, 190 N.Y. 132 , 82 N.E. 1119 , 17 L.R.A. (N.S.) 741; Maxmillian v. New York, 62 N.Y. 160 , 20 Am. Rep. 468; Leckliter v. City of Des Moines, 233 N.W. 58 ; Jones v. Sioux City, 185 Iowa, 1178, 170 N.W. 445, 10 A.L.R. 474; Bradley v. City of Oskaloosa, 193 Iowa, 1072, 188 N.W. 896. The verdict in this case is deserving of consideration for several reasons. The form of the verdict is so indefinite and ambiguous as to render it objectionable and to justify setting aside the judgment based thereon. Louisville N.R. Co. v. King, 119 Miss. 79 , 80 So. 490; Morris v. Robinson Bros. Motor Co., 144 Miss. 861 , 110 So. 683 ; 27 R.C.L., page 858, sec. 30, page 859, sec. 31; Parham v. Harney, 6 S. M. 55; Buckeye Cotton Oil Co. v. Owen, 122 Miss. 14 , 84 So. 133. There was no question for the jury to decide. Restatement of the Law of Torts, sec. 289. If we search the record for proof of negligence on the part of Robbins that was calculated to produce injury, and, that as a proximate result of such negligence the plaintiff was injured, we fail to find positive proof. On the other hand there is preponderating proof that there was an intervening act or force which Robbins did not foresee, and which he could not have foreseen, which was the sole cause of the injury, and that Robbins was not guilty of actionable negligence which contributed. Restatement of the Law of Torts, secs. 440, 441, 442. The verdict was excessive under the facts. Robert M. Holmes, E.T. Strange and Graham Graham, all of Meridian, for appellee. It will be remembered that appellant, the city of Meridian, declined to come under the Mississippi code section governing municipalities, but preferred to operate its affairs as a municipality under its own private charter granted to it by the state of Mississippi, under which it is permitted to exercise many powers and privileges which would have been denied it under the Mississippi code section. In the adoption of Dial's Code by Ordinance, appearing as Exhibit "E" to the declaration, it did so voluntarily, and is absolutely bound by the effect of such laws and renders it liable for the acts of its employees or agents, when in the discharge of his duties under these laws, regardless of the name of the office he operates under, as they are each and all private and corporate duties and not governmental duties. After the city, for its own pecuniary benefit, has made out of its policemen inspectors of all its private business, including streets, lights, bridges, water pipes, sewers, drains, wires, etc., and providing that each policeman shall, at all times, discharge such corporate duties; report street lights not burning so that the city can get credit for them, being purely local and private in their nature and not governmental or public, the doctrine of respondiat superior applies with full force, and the appellant cannot and will not be heard to say that it is not liable just because the co-appellant was also a policeman. That the duties fixed by the laws of the city involved private or corporate functions of a municipality, is well settled by this court. Brynes v. City of Jackson, 105 So. 861 ; Pass Christian v. Fernedez, 100 Miss. 76 , 56 So. 329, 39 L.R.A. (N.S.) 649; Warren v. Town of Booneville, 118 So. 290 ; Methodist Church, South, v. Vicksburg, 50 Miss. 601 ; Bradley v. City of Jackson, 119 So. 811 , 819; Crawford v. Delo, 119 Miss. 28 ; Brown v. Vicksburg, 108 Miss. 510 ; Semple v. Vicksburg, 62 Miss. 63 ; City of Vicksburg v. Porterfield, 145 So. 355 ; City of Hattiesburg v. Geigor, 79 So. 846. The city is responsible for scrambling the duties of its policemen with both public and private duties, and when the city voluntarily places mixed duties upon its policemen, his private duties instead of his public duties will predominate in the matter of fixing liability on the city, as the courts are not concerned with unscrambling the duties voluntarily placed upon police officers, by the city, as was held in the very able and well reasoned opinion by the Pennsylvania Supreme Court, in 1929, in the case of Bell v. Pittsburg, 297 Pa. 185 , 64 A.L.R. 1542, and Antine v. County, 280 Pa. 664 , 66 A.L.R. 1271. Whenever the work is not entirely public, but is part for profit, or when any element of pecuniary advantage enters into it, there is a liability for the negligent acts of servants. 188 Mass. 301 , 108 Am. St. Rep. 473; City of Birmingham v. McKinnon, 75 So. 487 ; 43 C.J. 944 and 964, sec. 1745; Jones v. Sioux City, 25 A.L.R. 474; Lobitz v. Cummings, 42 Okla. 704 , L.R.A. 1915B, 415; Levine v. Omaha, 102 Neb. 328 ; Denver v. Porter, 126 Fed. 288, 61 C.C.A. 168; Chandler v. City of Bay St. Louis, 57 Miss. 326 ; Yazoo City v. Birchett, 89 Miss. 700 ; Oklahoma City v. Foster, 118 Okla. 120 ; Worden v. New Bedford, 131 Mass. 23 , 41 Am. St. Rep. 185; Oliver v. Worchester, 102 Mass. 489 ; Hill v. Boston, 122 Mass. 344 ; Workmen v. New York, 179 U.S. 314 , 45 L.Ed. 552; Lloyd v. New York, 5 N.Y. 369 ; Maxmilian v. New York, 62 N.Y. 160 ; Brown v. Vinal Haven, 65 Me. 402 ; Nead v. New Haven, 40 Conn. 72 ; Eastman v. Meredith, 26 N.H. 285 ; Western Savings Fund Society v. Philadelphia, 31 Pa. 175 ; Bell v. Pittsburg, 64 A.L.R. 1542. Instead of there being any proof to show that the co-appellant was engaged solely in the discharge of police duties, the testimony affirmatively shows by the co-appellant himself that he was, at the time, engaged in the discharge of duties for the corporate or private benefit of the city of Meridian. We submit that the city had the burden of proving this affirmative defense, which it wholly failed to do. Jones, Admr., v. Sioux City, 10 A.L.R. 474; Mansfield v. Mallory, 140 Iowa, 206; Wingate v. Johnson, 126 Iowa, 154; Tittle v. Bonner, 53 Miss. 578 ; Titch v. Asher, 56 Miss. 571 ; Herdon v. Henderson, 41 Miss. 584 ; Page v. Sadler, 134 Miss. 459 ; Yazoo Railroad Co. v. Grant, 86 Miss. 565 , 111 Miss. 55 ; Bessler Co. v. Bank Co., 140 Miss. 537 ; Orgill Bros. Co. v. Polk, 155 Miss. 492 ; Twist v. Rochester, 55 N.Y.S. 850, 59 N.E. 1131 ; 43 C.J. 854, par. 1521; Smith v. New York, 45 N.Y.S. 239; City of Meridian v. Harvey, 147 So. 302; Carrington v. City of St. Louis, 89 Mo. 208; 3 Abbot on Municipalities, sec. 1029. In many states the doctrine of dual capacity has been entirely rejected. But, since the decision and opinion in Lagrone v. Mobile O.R. Co., 67 Miss. 592 , our state has been constantly aligned with those which hold to the latter doctrine. Many illustrations of the doctrine to which this state is committed are found in the notes, 4 Labatt, Master Servant (2 Ed.), pages 4314-4316; and among our own cases, see the Lagrone case, supra; Hercules Powder Co. v. Hammack, 145 Miss. 304 ; Gwin v. Carter, 158 Miss. 196 ; Barron Motor Co. v. Bass, 150 So. 202 ; Harper v. Public Service Corporation of Mississippi, 170 Miss. 39 ; Walters v. Stonewall Cotton Mill, 101 So. 495; Byrnes v. City of Jackson, 105 So. 861 ; Williams v. Southern Ry. Co., 59 So. 850; I.C.R.R. Co. v. King, 13 So. 824. An exemption from a recognized liability cannot be claimed unless it is clearly and expressly given; and a doubt as to whether a particular case falls within the exemption will be resolved against the municipality. 43 C.J. 932, par. 1707; Birmingham v. Starr, 112 Ala. 98 ; Schultz v. Phoenix, 18 Ariz. 35 ; Maxwell v. City of Miami, 100 So. 147; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 ; Maine v. St. Stephen, 26 N.B. 330; Nisbet v. Atlanta, 97 Ga. 650 ; Warren v. Booneville, 118 So. 290 ; Southern Bell Tel. Tel. Co. v. Quick, 149 So. 107 . The liability or nonliability of a municipality for its torts does not depend upon the nature of the tort, or the relation existing between such municipality and the person injured, but upon the character of the duties imposed and assumed. 43 C.J., page 925, par. 1702, page 930, par. 1705. The same officer may at one time act in discharge of duties as a police officer of the state, and at another time as the servant of the municipality in carrying out its private powers, and if the act complained of is done in the former capacity no liability is incurred by the municipality. But if the act done is outside of the officer's public duties as policeman, the performance being as the servant or agent of the municipality in the furtherance of its private or pecuniary interest, the municipality will be liable. 43 C.J. 966, par. 1745; Lagrone v. Mobile Ohio R.R. Co., 67 Miss. 592 ; 4 Labatt, Master Servant (2 Ed.), pages 4314-4316; Hercules Powder Co. v. Hammack, 145 Miss. 304 ; Gwin v. Carter, 158 Miss. 196 ; Barron Motor Co. v. Bass, 150 So. 202 ; Walters v. Stonewall Cotton Mill, 101 So. 495; Crawford v. Town of D'Lo, 89 So. 377. We say that there is no competent evidence in this record showing that there was any quotient verdict, for the reason that this court has held that a quotient verdict does not exist unless there is a previous agreement by jurors to bind themselves by a quotient verdict; and, there is no evidence in this record that there was any such previous agreement, except by the juror, Boone, who, being a juror, was incompetent to impeach the verdict of the jury. Buckeye Cotton Oil Co. v. Owen, 84 So. 133. Argued orally by Howard Westbrook, for appellant, and by S.M. Graham, for appellee.

Opinion of the Court

Per Curiam:

Shortly after dark on the evening of October 11, 1933, appellee was traveling along a paved street in the city of Meridian. Appellee was riding a bicycle and was proceeding near the curb of the street and oh his right-hand side thereof. O. T. Bobbins was a policeman of said city, and was patrolling his beat driving in an automobile. The beat to which he was assigned included the street upon which he was then traveling. He was proceeding at the rate of from twenty .to twenty-five miles per hour, and in the same direction as that of appellee. A dog suddenly ran into the street and was struck by the police car, and the policeman looked back to- see what had happened to the dog, as a result of which the police car was allowed to get out of control and overtook and ran over appellee and severely injured him.

' The above facts are sufficiently supported by the evidence as construed in the light of the verdict, and upon the said statement it is obvious that the question of liability as to the policeman himself was one for the jury, and we find no reversible error upon that issue.

*536 The principal question which has been presented for decision is whether the city is liable. The city relies upon the well-established rule that a municipality is not liable for the negligence of any of its. municipal officers, agents, or employees while engaged in the performance of a governmental function or duty, and it is conceded that police duties are purely governmental. Appellee showed in the proof that by virtue of several ordinances of the city each of its policemen is required to constantly note while on his beat, and to report as occasion requires, the condition of bridges, culverts, sewers, drainpipes, streets, and sidewalks, and also as to the condition of all street lights, and also as to any accidents that may have happened in his beat in regard to gas or water works, and the like; and appellee therefore contends that because a policeman patrolling his beat in said city is all the while charged with corporate as well as governmental duties, and that with no- more facts than shown in this case, namely, that the policeman at the time of the injury and damage was simply proceeding along his beat in a police car, the courts should not be called upon to attempt the technical task of ‘ ‘ unscrambling* the mixed relations ’ ’ in which the city has placed itself in regard to the duties of its police officers in view of the ordinances above mentioned. See Bell v. Pittsburgh, 297. Pa. 185, 146 A. 567, 64 A. L. R. 1542.

The majority of the court is of the opinion that the better and fairer rule is that contended for by appellee, and that as a consequence the verdict and judgment should be upheld also as to the city. The court is not confronted with a case where, at the time, the testimony shows that the police officer was definitely in pursuit of a criminal, or was definitely responding to an emergency call in respect to those duties which are distinctly police in their nature; and this opinion and decision is not to be construed as covering such a case.

*537 The other assignments have been examined, and no reversible error is shown therein.

Affirmed.

Dissenting Opinion

Dissenting Opinion.

Griffith, J.,

delivered a dissenting opinion.

The law has been so long and so firmly settled that a municipality is not liable for the negligence of its officers, agents, and employees while in the performance of governmental duties, that I think any modification thereof or any declaration which would substantially trench upon the practical operation of the rule should be made by legislative enactment rather than by judicial decision. The duties of a policeman are principally governmental, and such minor duties as were imposed by the ordinances here brought under review in respect to the corporate duties of the policeman were merely incidental or subsidiary. Doubtless such incidental duties are imposed generally upon policemen, throughout this state, as well as in other states. Therefore, as it seems to me, it would be more in accord with the settled principles and philosophy of the law to hold, in such a case as this, when nothing is shown than simply that the policeman. was patrolling his beat, that the policeman was engaged in the performance of those duties which are his principal or dominant duties, which are governmental. Otherwise the settled rule in all substantial and practical respects becomes reversed from that so long declared in the law, and is left as a mere shadow or shell, so far as such officers of the city are concerned.

Smith, C. J., joins in the above dissent.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.