59 Ind. App. 661 | Ind. Ct. App. | 1915
Respecting a public official in his relation to those requirements • of his office that pertain to the public rather than to the individual, it is said that “TIis position is strictly analogous to that of a private agent, who, for failing to execute the duties of his agency is not answerable to any one but his principal. Such an officer is the agent of the State, or of the municipality; and for failing to execute the duties which the State, or the municipality,
On the subject of whether the duty of road officials to repair public highways is a duty owing to the public or to individuals, and consequently to whom such officials are answerable for a failure to perform such duty, Judge Thompson, in reviewing the conflict in decisions, states his deduction as follows: ‘ ‘ Overseers of highways act directly for the public, and not distributively for individuals, and, upon the principles above announced, are not answerable, for mere neglect or nonfeasance in the execution of their office, to individuals damaged thereby.” 5 Thompson, Negligence (2d ed.) §6397 et seq. Also as follows: “But the general doctrine is that these road officers are not personally liable in damages to travelers who may be injured in consequence of the defective condition of highways or bridges in their charge, for the reason that their neglect is regarded
In an action brought to recover damages for the death of a person caused by the defective condition of an approach to a bridge over a watercourse, the Supreme Court used the following language: “It is a well settled proposition that when subdivisions of a State are organized solely for a public purpose by a general law, no action lies against them for an injury received by any one on account of the negligence of the officers of such subdivision, unless a right of action is expressly given by statute; that such subdivisions, as counties and townships, are instrumentalities of government and exercise authority given by the State, and are no more liable for the acts or omissions of their officers than the State.” Board, etc. v. Allman, supra, 576. To the same effect is Cones v. Board, etc. (1894), 137 Ind. 404, 37 N. E. 272, involving a case where a person suffered an injury by reason of the defective condition of a public highway. As indicated in the Allman ease, the decision is based on the “broad ground that counties, being subdivisions of the State, are instrumentalities of government and exercise authority given by the State. ’ ’ All the reasons that may be given why counties and townships should be exempted from liability in matters under consideration do
In McConnel v. Dewey (1877), 5 Neb. 385, under circumstances very similar to those presented here, it is held that liability against a road supervisor in his personal capacity does not exist. The decision is grounded on the fact that such official exercises duties of a general public nature and for the public at large; that the legislature, having charged such official with certain duties in the repair of roads, and fixed a penalty for their nonperformance, it will not be presumed, in the absence of legislative enactment, that the legislature intended an additional remedy for the benefit of individuals. There is a like holding in Nagle v. Wakey (1896), 161 Ill. 387, 43 N. E. 1079, involving township commissioners of highways, the decision being based on the additional grounds that such officers are liable to a penalty for a refusal to serve if elected, and that as a consequence, their situation is similar to that of townships and counties, in that their duties are imposed on them without their consent, and that such duties are exclusively for public purposes. To the same effect is Worden v. Witt (1895), 4 Idaho 404, 39 Pac. 1114, 95 Am. St. 70, involving county commissioners, the decision being based on the public nature of the duties performed by such officer in repairing highways and bridges. It is there said, in substance, that had there been any intention on the part of the legislature to impose such a liability on such officials, it would have been so declared by enactment. See, also, Robinson v. Rohr (1889), 73 Wis. 436, 40 N. W. 668, 9 Am. St. 810, 2 L. R. A. 366.
In each of the eases Dunlap v. Knapp (1863), 14 Ohio
Prom early in the history of state government in Indiana, it has been the policy of the State, through its legislative department to delegate to political subdivisions the duty of repairing public roads and bridges in certain cases. Provision has been made also for selecting certain local officers, through whom such delegated duty should be performed. The tasks required of these officials have from time to time become more onerous, and provision has been made for the infliction of penalties in the nature of fines or otherwise for the failure to discharge such delegated duties. Among such local officers are road supervisors and township trustees, who are subject to punishment, as we have indicated, for a failure to perform their respective duties. There has at no time in the history of the State been any statutory provision creating the sort of liability sought to be established and enforced in this action, and we know of no decision by any court of appellate jurisdiction in this State, that such a liability may be established or enforced. Considering the manifold burdens of their respective offices, these officials are poorly paid. If they should be subjected to a liability to respond in damages under circumstances presented here it is doubtful whether competent and responsible persons could be induced to assume the burdens imposed. If liable in this action, no reason occurs to us why they would not be liable under like circumstances when the way involved is a public high
We hold that whatever obligation rested on appellees as officials to repair the bridge in question was in the nature of a duty owing to the State or public at large, rather than to individuals distributively, and that appellees in their personal capacity are not liable to appellant for the mere failure to perform such duty by repairing the bridge, and that as a consequence the judgment should be affirmed. The negligent performance of an official duty by a road supervisor or township trustee to the damage of an individual is not included within the scope of this decision. Judgment affirmed.
Note. — Reported in 109 N. E. 938. As to liability of highway officers for injuries occasioned by their neglect of duty, see 83 Am. Dec. 563. See, also, under (1) 5 Cyc. 1095; (2) 37 Cyc. 216; (3) 37 Cyc 238; (4) 5 Cyc. 1078; (5) 5 Cyc. 1088.