Lead Opinion
OPINION
This сase arose out of a collision of two automobiles and an ambulance owned and operated by the City of Memphis and presents the question whether the operation of the ambulance was a governmental or a proprietary function. The Court of Appeals upheld the trial court and held that under the facts the ambulance service was of a proprietary nature, thus depriving the defendant city of governmental immunity. The case is in this Court on the city’s petition for certiorari. A brief amicus curiae wаs filed by the City of Chattanooga in support of the petitioner’s position.
The accident in question occurred on July 22, 1971, on Interstate Highway 55 inside the Memphis city limits. The city owned ambulance service had received an emergency call from the home of Margаret I. Nelson, who had become suddenly ill with what appeared to be a heart attack. Miss Nelson’s two sisters, Frances N. Bet-tis and Ruth N. Robinson, accompanied her in the ambulance. The ambulance was in the left lane of the highway with its siren and flashing lights in operation when it came upon a car driven by Susan D. Taylor. The ambulance was forced to slow down to allow time for the Taylor vehicle to move over. Shortly thereafter the
The case was heard on December 11, 1972, in the Circuit Court of Shelby County, Division Four. Motions for direсted verdict made by defendants on the basis of governmental immunity were denied, both at the conclusion of the plaintiffs’ proof, and at the conclusion of all the proof. The jury returned a verdict for the plaintiffs, awarding damages totalling $57,000.-00. The court denied defendаnts’ motion for a new trial. The Court of Appeals affirmed the judgment. We granted the defendants’ petitions for certiorari and briefs have been filed and oral arguments heard.
We observe, first, that the question whether the law of governmental immunity should be retained in Tennesseе is not before us in this case. That issue arose in Coffman v. City of Pulaski,
The issue presented in the case before us, then, is whether the ambulance service in question is “governmental” or “proprietary” in nature. The rule in Tennessee is that a municipality is immune from liability arising from the acts of its agent while carrying out a governmental function; but there is no immunity when the agent commits a tort while carrying out a private or “proprietary” function. Johnson v. City of Jackson,
The distinction between a “governmental” and a “proprietary” function is difficult, and this Court has in the past found that each case must be decided on its own facts. Williams v. Town of Morristown,
The City of Memphis created the emergency ambulance service in 1966. The proof shows that the reason for instituting the service was the failure of private ambulance firms to meet the needs of the citizens for emergenсy transportation. The ordinance stipulates that city owned ambulances are to be used for emergency calls only. The city charges a fee for each trip, but the balance sheet indicates the service is operating at a loss. Figures for fiscаl year, 1971-72, show that the city had twelve units operating at an average cost of each unit of $82,994.57 and that seventy-two men were employed with an average salary of $10,656.00. The total aggregate salary, including benefits, was $909,333.76. Collections on fees during that year, however, totalled only $196,745.-75, leaving substantial accounts receivable and a deficit of $798,598.17. The city ap
In looking to the character of the operation, the Court of Appеals placed emphasis on the charging of fees for the service, noting that since the city provided ambulance service “for hire”, then the city had gone into “the ambulance business”. In short, the collection of revenues from private citizens had rendered this a “proprietary” function of city government.
Tennessee case law, however, is to the contrary. This Court has long held that the mere collection of fees from a given service does not per se transform an otherwise public function into a private one. E.g., Nаshville Trust Co. v. City of Nashville,
“It is clear that this hospital was not operated for profit but at a loss to the City of Chattanooga and Hamilton County, which were required to absorb an annual operating deficit. It is true that about 87% of its operating cost was derived from private pay patients and the operation of Coca-Cola vending machines, the teа room, etc., but that does not deprive it of its character or take away its immunity.”306 S.W.2d at page 45 .
This was not the first instance in which the public character of a governmental undertaking had been upheld, despite the charging of fees by the government to support the service rendered. Examples are Johnson v. City of Jackson, supra (maintenance of parking meters held to be a governmental function); Vaughn v. City of Alcoa,
In Nashville Trust Co. v. City of Nashville, supra, the Court сharacterized the supplying of water for fire fighting purposes to individual businesses as governmental, even though a fee was charged. “An incidental charge for a public service does not render the service private or corporate”, the Court said, adding that the test is “whether the city has undertaken work of a commercial character from which it sought to derive profit.”
The pecuniary test, then, fails to strip the governmental character from this activity. At the same time, we find positive reasons for holding this particulаr function to be public rather than private. Like the services rendered by a public hospital (see discussion of McMahon v. Erlan-ger Hospital, supra), the ambulance service is a necessary function of city government, imposed by the government’s basic mandаte to protect the health, safety, and welfare of its citizens. As the Court said in the McMahon case, quoting 6 McQuillin, Municipal Corporations, Section 2669:
“The duty of a municipal corporation to conserve the public health is governmental, and it is not liable for injuries inflictеd while performing such duty. The decisions are practically unanimous in holding that a municipality is not liable for the torts of its board of health or other health officers on the theory that the duty in regard to preventing sickness*274 or caring for sick people is strictly a governmental or public function.” [Emphasis supplied.]
In light of all the facts, it cannot be validly asserted that this is a commercial venture which the city entered for the purpose of reaping a profit. In fact, the service has incurred a deficit, and a deficit would result even if all its accounts receivable were collected. It was a task undertaken not for the convenience of a few, nor for making money. It was one which the government took upon itself to meet the urgent needs of the general public. See Lucas v. City of Juneau,
The two assignments of error relating to the driver, Robert R. Roberts, аre without merit. The first alleges an error in the trial court’s instructions to the jury. The error was not alleged in the city’s motion for new trial, however, and for that reason it cannot be entertained here. Rule 14(5), Rules of the Tennessee Supreme Court; Cohen v. Cook,
The other assignment challenges the conclusions drawn by the jury from the evidence. This Court, however, cannot review the facts and weigh the evidence when there is material evidence to support the jury’s verdict. Rule 14(7), Rules of the Tennessee Supreme Court; see Flournoy v. Brown,
Gоvernmental employees are personally -liable for torts they commit, even though engaged at the time in carrying out the activities of the employer. See Eubanks v. Wood,
Lead Opinion
ON PETITION TO REHEAR
The plaintiffs, who were the defendants in error in the Court of Appeals, have filed an earnest petition to reheаr by which they insist that we erred in our failure to grant their motion to strike the petition for certiorari. The motion is in the following language:
“Come now the Respondents and respectfully move the Court to dismiss the Petition for Certiorari filed herein because the Petition does not comply with the Statutory requirements in that the Petitioners make no complaint with respect to the action of the Court of Appeals. Each of the three Assignments as well as the conclusion, complains only of the action of the Trial Court.”
The assignments of еrror included in the petition for certiorari are in the same language as those presented to the Court of Appeals. By each of the assignments the plaintiffs in error complain of an act of the trial court. In their petition for certio-rari, howevеr, they said:
“Petitioners, City of Memphis and Robert R. Roberts, feeling aggrieved by the action of the Court of Appeals of Tennessee, in the respects hereinafter shown, respectfully show to the Court
The petition also contains this language:
“On appeal the Court of Appeals overruled all of the petitioner’s assignments of error and affirmed the judgments for the respondents.”
When we consider the language of the petition for certiorari that we have
In Case v. Carney,
“The appellee has filed in this Court a ‘Motion to Dismiss Assignments of Error’ upon the ground they do not meet the rеquirements of Rule 14 of this Court in that the assignments fail to show ‘specifically wherein the action complained of is erroneous, and how it prejudiced rights of the appellant’ and failed to make ‘reference to the pages of the record where the ruling of the court on matters constituting errors of law appears.’ Rule 14(2),209 Tenn. 793 , 794.
“The Assignments of Errors, Brief and Argument of appellant substantially comply with Rule 14. Furthermore, as pointed out by the present Chief Justice, in speaking for the Court, in Norton v. Standard Coosa-Thatcher Co.,203 Tenn. 649 , 658,315 S.W.2d 245 , 249:
“ ‘When it aрpears to the Court that no harm can be done to the one who makes the motion to enforce the Rule and that an injustice would be done by enforcing the Rule, then the Court should use grace and discretion in the administering of the rule.’ ”
The petition for certiorari substantially complied with Rule 14. We overrule the petition to rehear.