Jolly's Adm'x v. City of Hawesville

| Ky. Ct. App. | Nov 12, 1889

CHIEF JUSTICE LEWIS

delivered the opinion op the court.

The'cause of action stated in the petition of appellant, administratrix of James A. Jolly, is that the marshal of defendant, the city of Hawesville, negligently permitted numerous persons to congregate on the streets thereof with guns and pistols, and to engage in sham battles, pursuing and shooting at each other in such close proximity as to endanger lives of those who were not, as well as those so engaged; which was continued from early in the morning until late in the evening of December 25, 1886, without any effort-on part of the marshal, though aware of, to stop it;- and that the deceased, son of the plaintiff, was, on that occasion, while quietly sitting on the sidewalk, in no wray participating in the disorderly proceeding, shot and wounded by a gun in the hands of one of such persons, that was loaded with powder and a hard wad, from which wound he suffered great pain and died. It is further alleged the marshal was appointed by and subject to removal by the city authorities, and that, though in virtue of his office he had the power and it was his duty to suppress such disorderly-and riotous assemblies, as the one described, he willfully-neglected to do so, whereby the plaintiff’s intestate was shot.

To render a municipal corporation liable for the acts, or negligence of its officers and servants it is not sufficient that they are merely under its control and sub-. ject to appointment and removal by it, for it is only “when a duty is a corporate one, that is, one which rests upon the municipality in respect of its special or local interests, and not as a prtblic agency, and is absolute and perfect, and not discretionary or judicial in its nature, or is one owing to the plaintiff, or in the performance of which he is specially interested, that the corporation is liable in a civil action for the damages resulting to individuals by its neglect to perform the duty, or for want of reasonable skill of its officers or servants acting under its direction or authority in the execution of such a duty.” (Dillon on Municipal Corporations, section 980.) “But police officers appointed by a city are not its agents or servants, so as to render it responsible for their unlawful or negligent acts in the discharge of their duties.” ^(Section 975.)

As said by this court in the case of Prather v. City of Lexington, 13 B. M., 559: “The officers of a city are quasi civil officers of the government, although appointed by the corporation. They are personally liable for their malfeasance or nonfeasance in office, but for neither is the corporation responsible. Omissions of duty imposed upon them by law, productive of prejudice to an individual, is not a corporate injury. The duties of the officers of. the city are prescribed by the statute from which they derive their power. The corporation appoints them to office, but does not, in that act, sanction their official delinquencies or render itself liable for their official misconduct.”

Such has been the uniform ruling of this court (see Pollock’s Adm’r v. City of Louisville, 13 Bush, 221" court="Ky. Ct. App." date_filed="1877-06-11" href="https://app.midpage.ai/document/pollocks-administrator-v-louisville-7379469?utm_source=webapp" opinion_id="7379469">13 Bush, 221; Greenwood v. Louisville, Ibid, 221; Ward v. Louisville, 16 B. M., 198), and a different one would be not only perversive of the main design of creating municipal corporations, intended principally as auxiliary of the State government, but open the door for actions against cities on account of every personal injury in any degree attributable to misfeasance or nonfeasance •of police officers, and thus impose burdens on taxpayers in no just sense at fault or liable. This long and well-settled doctrine has not been modified by statute of this State, except.to the extent that section fi, chapter 1, General Statutes, makes a city liable for damages done to property therein by riotous and tumultuous assemblage of people. But the care and particularity with which the conditions of such liability are set out in the statute, and the restriction of it in express terms to , cases of injury to property, shows the Legislature did not intend to thereby authorize a recovery against a city for personal injury resulting from the malfeasance or negligence of police officers.

We think the general demurrer to the petition was properly sustained, and, consequently, the judgment is .affirmed.