127 So. 2d 428 | Miss. | 1961
Appellee sued Bailey, a policeman, and tbe City of Hattiesburg for personal injuries sustained when tbe City’s patrol car operated by Bailey collided with a car in which appellee was riding.
At tbe conclusion of all tbe testimony, City of Hattiesburg requested tbe court to instruct tbe jury to find for tbe City. Motion was overruled and tbe case went to tbe jury and a verdict was returned in favor of appellee against Bailey and tbe City. City appealed to this Court.
Tbe decisive question in this case is whether tbe municipality is immune from suit by appellee. We bold that it is.
In the present case, the policeman was not subject to any ordinance requiring him to perform any duties pertaining to the city’s proprietary affairs. The proof showed that policemen, as they patrolled the streets, were required to report any condition that they observed that was dangerous to life, limb or property. There were no orders to look for defects in the streets, open manholes, defects in bridges and the like, but Bailey testified that he did make such observations and thought it was his duty. He added, however, that he made such observations as a private citizen would make. The police chief testified that while policemen were not required to look for defects in the streets and the like, it was their duty
The proof showed Policeman Bailey was on patrol as a policeman when appellee was injured. This case is not within the scrambled duties rule announced in the Beeman case.
It is also contended that since Bailey while thus on patrol was to pass the home of another policeman and take that policeman to the city hall, the immunity rule should not apply. The custom of one patrolman on duty picking up another policeman in the patrol car to transport him to his place of duty was permitted as being good law enforcement since it would keep some policemen on patrol at all times instead of leaving a period of time when no policeman would he on patrol. This was nothing more or less than a part of the activities of the police department in law enforcing activities. It did not remove the policeman from under the immunity rule.
Considered in the light most favorable to appellee, the proof shows that Policeman Bailey was engaged in duties pertaining solely to the police powers of the city when appellee was injured. The peremptory instruction should have been granted the city.
Reversed and judgment here for City of Hattiesburg.