*1 disposition question 'The shall 343. of what against Gehring’s
be made of cross-claim us, indemnity Reed is not before for
.Mr. partial judgment, which was a
because 54.02, dispose did not
one under CR
cross-claim. Reed judgment in favor of Mrs.
The Transport Company re-
against Dixie enter new one with directions to
versed judgment
sustaining for n. o. v. its motion Gehring of Homer judgment in favor grant directions to Mrs.
is reversed with against him.
Reed a new trial
Ruby HANEY, Administratrix of the Estate Deceased, Haney, Appellant, Faye of Alene al., Appellee.
CITY OF LEXINGTON et Kentucky. Appeals of
May 22, 1964.
Dissenting Opinion June Rehearing Denied March Fowler, Rouse, Hancock, Darrell B. Bell, Lexington, appellant.
Measle & Zimmer, Smith, Charles R. Richard S. appellee. Lexington, for MOREMEN, Judge. seven, Haney, her Faye age met
Aleñe Park by drowning in death the Woodland pool The admin- Lexington. swimming her estate filed suit istratrix death alleged child’s that the by negligent operation caused pool Lexington. ground maintenance defended on the parks and operation of and recreational classified governmental— facilities are therefore, and, proprietary —functions not liable *2 739 operation negligence achronism, basis, the results of without rational and has court, facilities. The circuit under by existed the force of inertia.” ample authority, complaint. dismissed the origin Even the of this doctrine con- Harlan, Lines, City See V. Inc. v. mysterious. tains some elements of the Ky., 573; 313 Baker v. S.W.2d Some writers assume that it direct is a 555; Lexington, 310 S.W.2d right king outgrowth of the divine Pirtle, Ky. 553, v. Louisville wrong. who could do But insofar S.W.2d 303. municipal county local district com- concerned, munities are it is generally So, again, upon once we are called immunity agreed application that the legal examine this munici- anachronism of grew doctrine Men of out of Russell v. pal immunity for tort. Devon, Eng.Rep. (1788), T.R. (1963), 41 N.C.L.Rev. this is said: against which involved a tort .action unincorporated Muskopf county. probably “There is no tenet our law analysis case this of Men of Devon was universally by that has been more berated made: legal courts and writers than the immunity criticisms doctrine. The “The action was disallowed on two highly wide-ranging and varied. Some grounds: group since was unincor- examples common it unfair are: that porated there was no fund out of which impose upon the individual the burden judgment paid; could be and ‘it is damage, upon of his rather than the entire better that an should sustain an individual community justly where it belongs; injury than that should suffer by denying remedy wrong, a for a Eng.Rep. an inconvenience.’ 100 life, deprivation doctrine results in the The rule of the was first Russell case liberty, property process without due country by brought Mower v. into this law; and that the doctrine runs counter '247, Leicester, Inhabitants of 9 Mass. concept a basic underlying the law county incorporated, There the could was torts, is, negli- follows sued, corporate sue and be there a gence.” fund judgment out of which a could be differences, Ignoring
satisfied.
these
pointed
adopted
out V. T. C.
Massachusetts
rule of
court
Harlan, Ky.,
Inc.
general
the Russell
which became the
late
accepted
has
the American rule.”
theory with
upon
reluctance and
seized
equally
It is
hard to determine how this
excuse,
almost
flimsy,
grant
however
doctrine became imbedded in the law of
any person
relief to
by negligence
harmed
Apparently
our Commonwealth.
we start-
corporation.
accept
a
ed without
it because in Prather v.
theory
ance or use
prove
of a
does not
Lexington,
Ky.
B.Mon.)
(13
validity
the truth or
of the rule of law
(1852),
this was said:
supports.
it
proven
If its worth has been
experience,
extended
act,
we can be content
particular
operating
“Where a
in-
theory.
with that
sup
But when
theory
individual,
juriously to an
is authorized
porting
grounded
a rule
of law is not
municipal corporation, by
delegation
logic,
sound
just,
not
special,
and has been
will
general
either
discredited
experience,
actual
corporate
it should
injury
liable for the
discarded,
it,
sup
and with
capacity,
rule it
war-
where the acts done would
ports. As stated in Muskopf
Corning
rant a like action
an individual.
Hospital District,
But,
55 Cal.2d
rule,
11 Cal.
general
as a
Rptr. 89,
457, 460,
359 P.2d
“The rule of
the unauthorized and
officers,
for tort
is an an-
done
although
unlawful acts of its
duties,
office;
powers,
liabilities of
to render it
color
their
liable,
appear
expressly
corporations, are difficult to
understand.”
it must
Louisville,
them,
Ky.
Kippes
City of
the acts
done
authorized
to be
*3
184,
L.R.A.,N.S.,
pursuance
131
they
in
of a
30
169. For
were done
S.W.
instance,
corpora-
city
for
general authority
negligent
to
a
is liable
act for
they
subject
which
relate.
maintain its streets in a rea-
tion on the
to
failure to
travel,
Boston,
public
(Thayer
511.)
sonably
has
v.
Pick.
safe condition for
19
250,
responsible
Wood,
Lampton
Ky.
also been held that cities are
& Burks v.
199
extent,
250
to the
in the same man-
is not
for
same
and
S.W. 980.
ner,
injuries
persons
negligent
might
natural
for
oc-
acts
when
as
which
occur
by
sprinkled
unskillfulness
negligence
or
those same streets
water
casioned
are
with
Louisville,
agents
Kippes
City
their
of works
construction
oil.
140
v.
Madison,
City
Ky. 423,
184;
(Ross
City
their
George-
v.
131
benefit.
S.W.
and
Lasser,
599,
98;
Memphis
Co.,
Mayor
Ky.
1
town
Smith
v. Red Fox Oil
228
Humph., 757.)
city
city
a
cor-
9
And where
15
489.
is the
liable for
S.W.2d
Nor
poration
injuries
keep
resulting
path-
to
and
is bound
the streets
defects in a
from
repair,
city
proper
way
it is
path)
exclusively
sewers
in
(bridle
with-
located
injured,
Pirtle,
damages
person
park.
liable
if
in
city
City
a
of Louisville v.
made,
repairs
neglect
Ky.
its
to have such
180
303. The act of
S.W.2d
612;
(The
Hill,
Furze,
Mayor, etc.
constructing
governmental
a
sewer
Mayor
Turner, Cowp., 86.)”
nature,
liability,
of Linn v.
with no
Adm’r v.
Smith’s
Louisville,
Recovery was denied in
foregoing
Sewerage
Commissioners of
however,
determined
Ky.
L.R.A.,N.S.,
because the
S.W.
upon
duty imposed
afterwards,
there was no
a mu-
but
negligent
if a
act of
nicipal
corporation
protect
mob
city
connecting
causes the
a
basement of
(To remedy
flooded,
city
violence.
condition stat-
responsi-
a
residence to be
city
ute fixing
upon the
was en-
damages.
ble in
Board of Councilmen
411.100.)
acted.
Ky.
Buttimer,
KRS
of Frankfort v.
oper-
city
a
S.W.
When
owns
history
We will not trace the
proprie-
cemetery,
ates a
functions
it
attempt
severity
of the
lessen
courts to
tary capacity.
Hopkinsville
of the
It is
Burchett, Ky.,
When
just Muskopf rule of law. In the corporations sions which hold apparently was made to ordinary liability for torts. immune from apply present past. cases however, plain, wish to make it this date Williams case it was said: “From impose opinion liability on does not judicial forward the doctrine legisla municipality in the exercise *5 immunity ordinary no torts quasi- judicial quasi-legislative tive Michigan.” The rule in longer exists scope judicial of think the functions. We Holytz applied the the case was to case adopted prop is abrogation Wisconsin prospective at as to all bar and made adopt it. is stated er one and we It case, Spanel In as we under- others. Milwaukee, Holytz of 17 Wis.2d it, stand the rule not become effec- would 115 N.W.2d as follows: adjournment next until tive after of seen, may there- legislative session. It be “Perhaps clarity by our will be afforded fore, unanimity thought henceforward, there was no expression so far as the rule. the courts which have abolished is responsibility for torts excep- concerned, liability the rule is —the tort determining the tion is open us Three courses are to longer municipality no it is aof presented (1) situation is here: operations those necessary into to divide its merely rule We can announce new with proprietary and those which are are which suggest out it and it should applying does decision governmental. Our applied brought be in the to cases to us obligation so government’s broaden (2) give future. can relief to the harms to for all to make it appellant deny the instant others; harms which is to those injuries be others whose occurred bodies are are torts that opinion; (3) fore the date of the liable reason this decision.” apply rule in can the instant case permit injured, all who have others been this time to is not our intention at limitations, by the not barred statute any governmental consider new advantage take rule. corpora- unit other than that of first the announcement of the new instance 1963, in agents. In October tion and its dictum, merely rule would obiter Ward, Commis- Foley Construction Co. upon by frowned some authorities. Department Highways, sioner appellant a gives second alternative state im- the doctrine 375 S.W.2d suggest industry again reward his munity and reiterated. was re-examined wrong. ing to Court that it has course, permits category, third retro Judgment reversed. spective particular rea relief. We see why application
son the rule this third city dissenting. MONTGOMERY, J., is harmful. difficult to believe a MONTGOMERY, recognized mu- Judge this Court therein since (dissenting). proper subject for nicipal immunity aas respectfully I I feel it dissent because legislative in V. T. exercise of the effect, Court, inappropriate for presumptuous highly it is I feel that legislate by long-standing rule judicial government branch of the problem presented law. This recognized prerogative usurp now squarely to the General in V. change the branch and City Harlan, Ky., C. Lines v. 313 S.W.2d law of following language: STEWART, J., joins in the dissent. majority “Regardless of how may feel at personnel this court present concerning whether time path marked we should follow the recognize Court,
the Florida we must judicial prob-
that we faced with a
lem fact that which results from the never (although rule LANE, Appellant, imbed-
clearly become defined) has so Cecil this state ded in common law of become a over the it has Kentucky, Appellee. COMMONWEALTH of part of our mores. We definite make a choice as to whether Appeals Kentucky. by the in such a should be made Nov. majority of legislature or us. The *6 Rehearing Denied March change ad- the court believes legislative itself discretion dresses ourselves must content that we
only with criticism of the rule
we have created.” power the Common- legislative Kentucky
wealth General is vested in the Constitution, Kentucky
Assembly. Sec- pro- express
tions 27 and There
hibition this exercise of
by any person persons other or collection of Kentucky Assembly.
than the General
Constitution, Section 28.
Since the invitation act extended Assembly Lines
to the General in V. met the General
regular and 1964. session special been called
Numerous sessions have subject in-
in which this been could have
cluded if law had necessary
deemed No action or desirable. Gener-
has been taken on matter in- Assembly;
al bill not even a has been
troduced. Inasmuch as supposed government
branch changes
reflect sentiment and the