193 P.2d 693 | Nev. | 1948
Lead Opinion
The district court answered this query in the negative and, without opinion, sustained a general demurrer to plaintiff's complaint. Plaintiff elected to stand upon the complaint and not to amend, and suffered judgment to be entered in favor of the defendants for costs. From *247 such judgment the plaintiff appeals. From the complaint the following facts appear:
At the time of filing the complaint defendants Southworth, Penrose, Rogers, Knox and Peterson were members of the city council of Reno, Washoe County, Nevada. Defendant Nellie M. Barrett was the administratrix of the estate of William P. Barrett, deceased, a former councilman who had died subsequently to the acts complained of. Defendants Joe Brown and John Doe were the arresting officers who arrested and imprisoned the plaintiff. It is alleged that plaintiff was detained in a vile, loathsome cell, unheated, with the temperature below freezing point, and with drunken, diseased and unclean people, and was restrained of his liberty for three days and two nights; that the act of the legislature of the State of Nevada incorporating the Town of Reno and authorizing the establishment of a city government therefor and commonly referred to as the city charter (Stats. of Nevada, 1903, page 184, as amended; 1941 Compiled Charter and Ordinances, City of Reno, Vol. I, page 26) provides: "The city council, among other things, shall have power: * * * To provide and maintain a city prison, and provide for the guarding, safekeeping, care, feeding, and clothing of the city prisoners * * *"; that pursuant thereto the individual defendants "as the duly elected, qualified and acting city councilmen of the City of Reno" did provide such city prison, but willfully, unlawfully, maliciously and negligently failed and refused to appoint a keeper of said city prison or personally to provide for the safekeeping, care, feeding and clothing of the city prisoners on December 15, 16 and 17, 1945, failed to maintain the temperature above the freezing point and failed to provide a keeper who would see that plaintiff and other prisoners were properly fed and clothed and given medical attention; that defendants knew all of these conditions and knew that by reason of the negligent maintenance of the jail several city prisoners therein confined had died; that *248 plaintiff suffered frozen feet which required amputation of certain portions of several toes, and would require additional operations and hospital care and is permanently injured and disabled; that he suffered severe pain and anguish, was mortified, humiliated and shamed, etc., and was prevented from attending his lawful pursuits, to his damage in the sum of $50,000. Throughout the complaint it is repeatedly alleged that the acts of defendants were unlawful, malicious and negligent.
Plaintiff in his opening brief states: "It is to be remembered that we are not suing the City of Reno, nor are we suing the board as such, but we are endeavoring to hold the individual councilmen liable for their negligence." Plaintiff concedes that the statutory provisions for the construction and maintenance of a jail are permissive and not mandatory, but contends that "once the city council or their predecessors have provided and maintained a city prison, then it becomes incumbent upon them as a mandatory and clear and absolute duty to provide for the guarding, safe-keeping, care, feeding and clothing of the city prisoners." Plaintiff repeats in his reply brief: "It is to be remembered we are not suing the municipal corporation or the Board of City Council — but the individual councilmen for their personal negligence," and insists that once having erected the jail and undertaken to maintain it, the duty to provide for the prisoners therein "is a mandatory duty upon each city councilman to see that the care is proper and does not result in injury to the appellant." Again, in response to the assertion by respondents of the general rule that in erecting and maintaining a prison a municipal corporation is exercising a purely governmental function and is therefore not liable to a person imprisoned therein for injuries sustained by reason of its improper construction or negligent maintenance, appellant insists: "It must be kept in mind that in the case at bar we are not suing the municipal corporation, but the public officials on the theory of damages suffered *249 by the negligent acts of the officials in the performance and nonperformance of ministerial duties."
The respondents insist that if the municipality is relieved from liability, it would be inconsistent to hold the officers liable and that it would be an anomalous doctrine that would exempt the corporation on the grounds of its compulsory agency in behalf of the public welfare and at the same time affix liability upon its agents for precisely the same acts done under express authority, and cites authorities from other states in support of this view. They also insist that to "provide for the guarding, safe-keeping and care, feeding and clothing of the city prisoners" is a judicial or discretionary function, and that as no facts are alleged constituting willfullness, malice, or corruption, no liability arises to a person injured as the result of the exercise of such powers.
The situation is not free from difficulty. Statutory and charter provisions vary greatly, distinctions between governmental and corporate functions are sometimes loosely drawn, the transition from a discretionary function to a ministerial one is often far different from crossing the white line on the highway, the distinction between acts of misfeasance and nonfeasance appears often to be a matter of the point of view. Questions of notice, knowledge, malice, negligence, etc., inject themselves from important angles, and still other elements are found emphasized in the cases. These elements in turn are subject to further refinements of pleading, such as the pleading of notice or of knowledge or of malice etc., and these in turn are subject to further refinements, such as pleading the conclusions of the pleader in place of the actual facts to be supported by proof from which the conclusions may be drawn. It is therefore not surprising that we are confronted with a mass of conflicting decisions and that any attempt to reconcile them leads only to further confusion. Out of this maze of decisions, principles, rules, interpretations, distinctions *250 etc., there emerge, however, certain well-recognized, though not universally approved, principles of law.
1. The first of these, which appellant frankly concedes, is the immunity of the sovereign from suit. Rex non potest peccare. Even this has been decried. Angstman, J., in the concurring portion of his opinion in Coldwater v. State Highway Commission, Mont.,
2. The second rule, almost unanimously accepted, is that the erection and maintenance of a city prison by a municipal corporation are the exercise of a purely governmental function. The third rule necessarily follows, namely, that the municipality is not liable to a person imprisoned therein for injuries suffered by reason of its improper construction or negligent maintenance. See note in 46 A.L.R. 97, citing authorities from many states as well as from Canada and Australia. See, also, 43 C.J. 1168, Prisons and Workhouses, sec. 1933. Cases holding the jailer liable (such as Ratliff v. Stanley,
3. The fourth proposition involves no difficulty in itself, namely, that the immunity from suit, unless expressly provided by the legislature, does not attach to a municipality in the performance of its corporate or proprietary functions. However, much of the confusion *251
above referred to grows out of cases in which the liability has been held to attach by reason of the negligent performance of such function (the most common cases being those of the negligent construction or maintenance of streets) in which the expressions used by the various courts have not in terms limited the holdings to such corporate acts. In this state in McDonough v. Mayor and Aldermen of Virginia City,
4. Nor does the fifth principle enunciated afford any difficulty, namely, that although the authority to perform a corporate act be permissive and no liability attach if the municipality in the exercise of its discretion should conclude not to enter upon such performance, it will nevertheless be liable for its negligent performance of such corporate act once it enters upon the performance thereof. McDonough v. Virginia City, supra.
Appellant places his reliance on Doeg v. Cook,
"The liability of a public officer to an individual for his negligent acts or omissions in the discharge of an official duty depends altogether upon the nature of the duty to which the neglect is alleged. Where his duty is absolute, certain, and imperative, involving merely the execution of a set task, — in other words, is simply ministerial, — he is liable in damages to any one specially injured either by his omitting to perform the task, or by performing it negligently or unskillfully. On the other hand, where his powers are discretionary, to be exerted or withheld according to his own judgment as to what is necessary and proper, he is not liable to any private person for a neglect to exercise those powers, nor for the consequences of a lawful exercise of them, *253 where no corruption or malice can be imputed, and he keeps within the scope of his authority."
See, also, 25 Am.Jur. 641, Highways, sec. 348. For the same reason Dillwood v. Riecks,
5. Article XII of the charter vests in the city council the legislative power of the city, defines the qualifications of the councilmen, the manner of their election, the legislative procedure for adoption of ordinances and then proceeds to define its powers, requiring for the purpose some 30-odd closely printed pages and including the section quoted above. Subdivision Eighth of section 10j also gives to the city council the power "To create any office that may be deemed necessary for the good government of the city and to employ or appoint, on its own motion, such person or persons as it may deem expedient or necessary in any department of the city, who shall thereupon be subject to the supervision and regulation of the department head thereof." Nowhere in the charter does it appear to be contemplated that the city council or its individual members should have personal supervision of the city prison. See Corliss v. Van Duzer,
6. In view of appellant's emphasis of the fact that he is suing neither the city nor the city council nor the councilmen as such but is suing the members of the city council as individuals and in view of our conclusion that the maintenance of a city prison is a governmental function for whose negligent operation neither the municipality nor its governing board would be liable, at least in the absence of an allegation of facts constituting corruption or malice or other recognized exception to the rule, the only question before us for determination is whether such members of the city council are liable as individuals. It is the question posed in the opening sentence of this opinion. We are satisfied both by reason and authority that they are not so liable, first, because (having concluded that neither the statute nor any common law duty contemplated that the individuals personally attend to the heating of the jail, the care of the prisoners, etc.) the appointment of a keeper was a quasi-judicial or discretionary act and not a ministerial act and, secondly, because under the circumstances the immunity of the city from suit extended to the board of councilmen and the individual members could act only as such board. *255
In Coldwater v. State Highway Commission, Mont.,
In Moye v. McLawhorn,
In Liming v. Holman, 160 A. 32, 33, 10 N.J. Misc. 582, *257 after holding that the negligent maintenance of a county jail, by reason whereof the plaintiff was injured, was a governmental function and that in the absence of statutory sanction no private action accrued to an individual suffering an injury through negligent operation, the court refused to pass upon the question as "to the improper designation of certain of the defendants as individuals rather than the corporate body sought to be involved by proper legal title * * *."
In Miller v. Ouray Electric Light Power Co.,
As noted, we have also concluded that the demurrer was properly sustained because we are satisfied that the matter of appointing a keeper was discretionary in the city council. It is true that the complaint charges that the members of the city council had knowledge of the subfreezing temperatures and of the fact that there was no prison keeper or jailer and of the fact that several prisoners had died in the city prison. It cannot be said, however, that the duty of appointing a keeper left nothing to the discretion of the board. See 46 C.J. 1036, *258 Officers, sec. 303. The books are replete with cases involving the failure of boards and officers to perform sundry acts, which nonperformance resulted in damage to the plaintiff, but where the performance or nonperformance involved discretionary action, and no matter how unwise their judgment may have turned out, it was held that no liability attached. Appellant grants the general rule, but insists that the duty to employ a keeper was a plain, mandatory, ministerial duty. It is clear to us, however, that the adoption of an ordinance, resolution or order providing for an appointment of a keeper would be based first upon considerations of the necessity and propriety for such action. If it was decided that a keeper should be appointed, it would at once be obvious that he could not be on duty twenty-four hours a day. The question would then arise as to the necessity for the appointment of a day keeper and a night keeper or for the appointment of three keepers, each working an eight-hour shift. As plaintiff's chief complaint is the low temperature from which he suffered, the board of councilmen would have to consider whether the keeper's duties should include such janitorial services as tending the heating apparatus or such engineering service as maintaining the same in good condition and repair. Consideration would also have to be given as to whether the service in question was not being performed by the chief of police or other officers. While it is alleged that the defendants had knowledge that there was no keeper or jailer, it is obvious that some authority over the city prison and the prisoners must have been exercised by some officer or person. No officer or other person in charge of the city prison is named as a defendant herein. Questions as to feeding and clothing the prisoners are raised by plaintiff's reliance upon the charter provision referred to. Sanitary conditions are also called into question. All of these considerations impress upon us most strongly the conclusion that the matter of appointing or not appointing one or more keepers involved a *259 discretionary duty, and that the failure to appoint a keeper was at the most an error in the judgment or discretion of the board in the performance of a public function and for which no liability attached, in the absence of a sufficient showing of corruption or malice.
Appellant has quoted at great length from the opinion in Ham v. Los Angeles County,
Although not relied upon by appellant, the court has also given long and serious study to the case of Hale v. Johnston,
"The Court of Appeals was of the opinion that the members of the board were charged with the duty of employing an experienced and competent inspector to inspect at reasonable intervals the gymnasium equipment and that, failing so to do, they were guilty of a *261 misfeasance, for which they were individually responsible to third persons for injuries resulting. In so holding we are of the opinion that the Court of Appeals committed error."
After quoting the statutory duty of the trustees to manage and control the school and to prescribe all necessary rules and regulations, etc., the court said:
"We have been referred to no statute or ordinance authorizing or enjoining upon the members of the board of education the employment of an inspector, as suggested above * * * The only act of negligence involved is that of [not] employing an inspector."
Recognizing Hale v. Johnston as authority for the rule that liability will result from omitting the performance of a duty that is absolute, certain, imperative and simply ministerial, the court, however, uses the following language, which is particularly applicable to the present case:
"The plaintiff saw fit to specify the act of negligence in her declaration upon which to fasten liability upon the individual members of the board, and the Court of Appeals held that the only act of negligence which was sustained was that charging them with failure to employ a competent inspector * * * But we are of the opinion that there is nothing in this record to show that said board was charged `absolutely, certainly, and imperatively' with the employment of an inspector, and hence the injury here complained of cannot be charged to them."
We are tempted to discuss at some length the many other cases that have cited Hale v. Johnston, but it would unduly lengthen this opinion to do so. Reference must, however, be made to the case of Fernelius v. Pierce,
If in the exercise of such discretion the board had appointed a keeper but the same results had followed which are complained of by the plaintiff, could it nonetheless be the basis of a complaint that the board had been negligent in not appointing two keepers? One can readily see that this would lead to almost absurd conclusions, and which would violate the distinctions maintained by all of the authorities, without any exception so far as we know, between the rule as to liability for the performance of a discretionary act (without fraud or corruption) as distinguished from the performance of a ministerial act. It would eventually lead to the conclusion that despite the immunity of the governmental agencies redress may be had virtually in all cases against members of judicial and quasi judicial boards and officers personally.
Other points have been argued and other cases cited and discussed on both sides. These have been considered by the court but in view of the conclusions reached it becomes unnecessary to discuss them. The judgment is affirmed with costs.
HORSEY, J., concurs.
EATHER, C.J., did not participate in the foregoing case.
Addendum
Rehearing denied. *264