*1 John Edward Coffman, Defendant Error.
City of Pulaski, Defendant Error.
Opinion September 18, filed 1967. Rehearing January Petition Denied 1968. Henry counsel, W. Joe Henry, Jr., Henry, & Lewis, plaintiff Pulaski, error.
Dayid E. Pulaski, defendant in error. Cheatham, *2 opinion of the Humphreys Me. delivered Justice Court. appeal sustain-
This from ease here on a is ing plaintiff-in-error’s declaration, a demurrer dismissing his suit. personal City Pulaski for
Plaintiff-in-error sued the by city policeman injuries a shot sustained when he was capture specifically al- trying him. was and arrest It by City complained leged were committed acts respect capacity, by policeman governmental its a negligent; employment City whose was not by immunity providing- City its had not waived that the indemnity insurance. City’s point made could not be
The demurrer policeman negligent on the act of its held liable for the alleged grounds in the declaration. the case is before sustained,
This demurrer was is well law that, while it settled on the contention us municipality a be held liable Tennessee that cannot policemen negligence of one of its action for the in tort penal municipal ordinances or the the enforcement penal these this Court should overrule State, laws of the liability immunity from tort created and abolish cases by them. predicated grounds on the that
This contention from at tort there was English Devon, Men law, the common Russell v. Reprint, recognized Reports, p. 359, by reported involving tort first Tennessee onr case Memphis ag*ainst city, Mayor, Lasser, etc., action (1849). com Tenn. And so the rule exists without Secondly, mon law warrant and should he abolished. unjust, recog that this contended jurisdictions, nized eminent law writers and so we it. should abolish City of Pulaski contends that our cases have proposition
settled the officers are offi state penal cers in the enforcement of strictures the state police power governmental so that subdivisions they immediately scope whom within act are protection afforded Article sec. 17 the Constitu maj providing, brought tion of Tennessee, “suits *3 against the State in such manner and in such courts Legislature may by legis as the law direct”. And that the any provision lature has not made of a suit this character.
We have the concluded of trial the court must he affirmed. municipality
The that
immune from lia
bility
penal
enforcing
for the
of a
torts
in
officer
ordinances and criminal laws
in
established
Tennessee
by a number of cases. Pester
Vickers,
v.
645 City (1947); Tenn. Jackson, 694 Johnson S.W.2d v. 194 of (1952); Mayor 250 33 20, 1, S.W.2d A.L.R.2d 756 Tenn. Town Aldermen Morristown Inman, of App. (1960). judge cor trial 685, S.W.2d So rectly applied the this law to case. argument to the this
As should we abolish doctrine of because is without warrant adopted as common law State our Consti adopted (which England law as tution, common say 1796), in force in North it is Carolina sufficient accepting plaintiff-in-error’s argument that, own by judges law common should written meet the lay society expected needs of to act thereunder, Supreme power within Court this state to adopt promulgate immunity pres the doctrine of ently English prece under assault the absence an validity. dent is immaterial to its entirely spite op But we are satisfied, inions.ex- pressed contrary, to the that Russell v. The Men of English Reports, Reprint, p. Devon, is not au- thority sustaining origin the common im- law munity (It argued doctrine. doctrine in the United so in States, Tennessee, case, from this came but support it). For, that the does not true case while it is Kenyon, predicated Justice, Lord Chief his conclusion against ag-ainst county of a tort the maintenance action primarily policy governmental logic, subdivision *4 opinion J., who also wrote an in the case Ashhurst, proposition primarily was based his decision there plaintiff seeking such cause of action as the no was to quote: maintain. We presumption strong
“It is a that that which has never by law 'been done cannot be done at all. And it ad- present such action as ever mitted that no brought, though fre- occasion must have happened.” quently
[*] # # # # # principle: but I “Thus this case stands on think Abridgement is au- cited Brooke’s a direct case from thority action main- that no to show could Beports, Beprint, pp. English 362-363. tained.” opinion Kenyon closed his on the case with And Lord statement: experiment ought not that this “Therefore I think support- encouraged; there or reason for law precedent against ing in there action; a English Beports, Beprint, p. 362. Brooke:” King’s quotations from Bench It is evident these opinion was maintainable at the the action was opinion being of the action common addition law, policy. a as matter was not maintainable plaintiff-in-error’s agree contention Nor can we Mayor, Memphis Lasser, 28 etc., Tenn. that against (1849) doc- in Tennessee first settled the law consideration, have under and that trine of we departed settled case was later law as thus any justification. from without municipal hold that case Court did While corporation digging liable to for its own suit tort occupying cistern about two-thirds the sidewalk day night, guard leaving or uncovered, without light signal night, without or or and also at enclosure, pedestrians danger precaution to warn exposed, they recognized still which were *5 opinion expressly recognized enforced, the of court the liability by respondeat there was no tort reason of the superior governmental public, doctrine for the acts, doc- predi- which trine case under consideration the language: this cated, in
‘£
tacitly
in
The court
this case
not
therefore in
err,
did
assuming, as a
law,
matter of
that the construction of
question
scope
powers
in
the work
was within the
of the
corpora
private
conferred, and for the
of
benefit
the
principle
upon
tion. The
relied
to
the
maintain
distinc
attempted
by
[sic]
tion
to be taken
the consel
for the
plaintiffs
altogether
is correct,
error
mis
but
applied to the facts
the
of
case under
It
consideration.
may
corporation exercising power
be
a
admitted
a
by
public
law
conferred
benefit of
the
would
negligence
acting
agents,
be liable
of its
if
scope
authority,
guilty
within the
of its
if
no
of
negligence
discharge
of the duties with which
corporation
charged.
in such
case would
upon
footing
public
required
perform
a
officer
duty
discharged
a
which could not be
without the em
ployment
agents
servants, or
to such
cases
respondeat superior
apply.
doctrine
does not
But
plaintiffs in
sustained no
error
relation to
public
operation
bring
as to
them within the
this
principle.
special
Their charter is
franchise for the
private
city Memphis,
benefit
emolument of the
although
public may
doubt
benefited
it.
Mayor
It was held
court
the case of Humes v.
(
So, while Aldermen Lasser authority right against maintain suit *6 municipal corporation for own its torts in its maintain- ing- keeping and safe its streets sidewalks, and it never authority respondeat superior was that the doctrine of might liability corporation visit vicarious on a public required by a torts of officer law to enforce the penal aspects police power of the state. plaintiff-in-error’s
As to contention the rule is so un- just legislative this Court should not wait for attention it, any immunity but should abandon all idea of join alleged throng indignant judges busily engaged an away sweeping point although rule, we out that this rule has been under as attack, are all of re- rules virtually postulation, straint, only since its we find a very jurisdictions judges they few'- whose have felt could ignore policy reason for the rule and install their personal justice, independent own ideas legislative action. plaintiff-in-error’s
In evidently brief which intended encyclopedic only to we are referred to ten states in changed by which this court action. In consideration of which we are constrained observe hardly that Tennessee can keeping be accused of bad company aligned forty against when it is states ten. opinions following it is of
And
interest that
in two
by plaintiff-in-error,
of the cases cited
Kane
Moliter v.
Community,
land
18
11,
Ill.2d
And
is of further
Hargrove
.jurisdictions only the
v.
the ten
case
from
Mularchuk,
v.
Beach,
130,
McAndrew
Cocoa
So.2d
anything
1313,
A.2d
A.L.R.2d
had
820,
Municipalities adequacy would become liable airport authority operations; or otherwise their their prevention extinguishment fire their am- activities; every negligent services; bulance other conceivable by any agents employees by anyone of their act or which might injured. else policemen
Cities would be liable if made errors in moving acting or conduct in with the alac- rity required force headlong pre- oftentimes cipitous pursuit dangerous criminals. There could be “police brutality” quelling asserted for riots, consequence as a it is which conceivable the entire city might placed jeopardy financial resources by multiplicity brought some suits; to embarrass municipality in its riot control activities. *8 city damage might could
A be liable for all of the police if of much result too action, instead mistake in or from lack of resources, the service at particular any place inadequate, and time so (See Newsweek riot or mob was not controlled time. riots.) August city Magazine, 6, 1967, article on Detroit immunity swept away, If doctrine were to be this go recognized have to now would property orphanages, hospitals, favor of of charities, indigent, aged homes for so and their funds trust seriously (which replaced) impaired could be could be charity and so the vital service behalf of the jeopardized suffering sick and ruined. or examples There be are innumerable that could enough made, but to these are make clear a reason- to problem mind able that this is not one who courts, pick expand cannot and choose but for limit, legislature. unjust charge
The final answer the doctrine is so legislative this Court should not wait action is that Assembly the Tennessee General acted. This has Chapter done enactment of the Public 374 of Acts Eighty-Fifth Assembly. caption General explanatory purpose, act, this which of course of its is: require municipal corporations any ACT “An or political pro- subdivision of the State of Tennessee to indemnity employees may vide defense who damages arising performance sued out of their official duties while the course of their employment, exceptions, with certain to authorize obtaining insurance to cover em- ployees.” arguments may
While arise about cannot act, it legislative denied that it shows awareness the situ- responsibly. an intention deal ation, and with it *9 652 panorama upon of tire whole a consideration sum,
In legal-precedent elsewhere, of in Tennessee and and the immunity policy so so often well basis the and for repetition require here, not to the evidence stated as and legislative rampaging spirit awareness, the of of daily requiring violence manifested our streets un- activity, police over- we are not inclined to embarrassed immunity establishing rule cases in a case like this personal supposed justice. reasons of may City as Indeed, the defendant-in-error con- origi- tends, that since the under consideration question open Constitution, nates this State not justice for our on the consideration bare issue of or in- justice, only question. as but constitutional City
In Elizabethton, Combs v. 161 Tenn. 363, of quoted ap 691, S.W.2d Mr. Chief Justice Green proval Knoxville, from Davis 599, 90 Tenn. 18 S.W. 254, this effect:
*“* * preservation order, maintenance sobriety, the arrest and detention of violators general private law of the state local corporation. private benefit of the It draws emolu- carrying ment from the enforcement of ordinances out general policy state, the exercise of power incident to all these matters it is but an agency of the state officers; its in effect, officers of state.” Tenn. S.W.2d 691.
This agents determination officers are state penal pro- enforcement of laws and so entitled to the tection of Article 1, Section 17 of our Constitution has consistently by adhered since it was announced Justice Lurton coming in 1891. And as it does from the judge greatest law whose writers, mind one our being preeminence the Su- resulted in his elevated to preme being States, vouched United Court our Green, another of Mr. Chief Justice as was great judicial luminaries, adhered to since exceedingly justices, find it difficult to abandon we *10 any plain- interpretation suggested in reasons of the to In we see reason at all brief. fact, tiff-in-error’s depart reaffirm it. it, from and of the is affirmed. trial court and Cre- Chief ChattiN Justice, Dyer,
Burnett, son, Justices, concur.
Opinion on Petition to Rehear Humphreys. Me. Justice ' n ' petition reemphasizing the filed, A to rehear sincerely strongly argued entertained and contention plaintiff-in-error change that this should Court respect municipal non-liability police action, with regard more without fact nile has existed for years predicated upon than a construc hundred justices as tion our State Constitution Green regard and Lurton. And for the obvious inten without Assembly tion General Tennessee to deal Chapter subject, by its enactment of as evidenced 374 of Public Acts of 1967. respect reasoning plaintiff-in- which
While we petition and concede based, contention error’s arguments presents strong support of this .rehear opinion expressed, so the Court is still contention, petition rehear denied. . . Dyer, Chief Chattin Cre- Burnett, Justice, concur. son, Justices,