Semple v. Mayor of Vicksburg

| Miss. | Oct 15, 1884

Chalmers, J.,

delivered the opinion of the-court.

Washington Street, in the city of Vicksburg, was permeated throughout its length by a culvert or sewer, into which there ran various inlets from privies on the sides of the street, and also one or more inlets from private yards disconnected from the privies. The citizens being annoyed by the obnoxious stenches arising from the sewer, the board of mayor and aldermen, in 1879, passed the following ordinance:

“ On motion, .the chairman of the street committee is instructed to have all privy inlets to sewers hermetically sealed, also to ascertain if traps can be made available for shutting out all odors emanating from the sewer.”

Said chairman emploj’-ed one Stanton to close said privy inlets. By the negligence or inattention of Stanton, he closed up the inlet running from Mrs. Semple's house to the sewer instead of that .leading from her privy, in consequence of which the water leading from the house was dammed up and flooded, whereby her house was greatly damaged; for which injury she brings this suit.

The court below, on motion of defendant, excluded all the testimony, it being shown that Stanton afterward received payment from the city for the work done, though it was not shown that the city knew of his negligence and by its payment ratified it. The action of the court was based upon the idea that a municipal corporation is not liable, even for the negligence of its employees and servants, while engaged in a public work which the city performs for the public at large, and from which the corporation derives no pecuniary profit nor expects to do so. There are undoubtedly many cases holding this doctrine, which are noticed and commented on in 2 Dillon on Municipal Corporations (3d edition), § 775 et seq., and authorities cited.

We prefer not to involve ourselves in the mazes of these decisions, but rather to confine ourselves to the point before us.

It is quite universally held that a municipal corporation is liable for the acts of its workmen in the work of constructing gutters, drains, and sewers, where those acts are purely ministerial, involving the exercise of no governmental powers or judicial func tions. An almost unbroken array of authorities fix the liability in cases like these. This principle seems decisive of the- present case. The action of the mason here in closing up the inlets was purely mechanical, and the city in ordering it was exercising no governmental function whatever. The closing up of the inlet flowing from the house, instead of that flowing from the privy, proceeded -clearly from forgetfulness or inattention, and to such an act the doctrine of respondeat superior must be applied. 2 Dillon on Municip. Corps., § 1049 et seq.; Rochester White Lead Co. v. Rochester, 3 N. Y. 483; Delmonico v. City of New York, 1 Sanford 222; Barton v. Syracuse, 6 N. Y. 54; Kobs v. Minneapolis, 22 Minn. 159" court="Minn." date_filed="1875-08-24" href="https://app.midpage.ai/document/kobs-v-city-of-minneapolis-7963070?utm_source=webapp" opinion_id="7963070">22 Minn. 159 ; Emery v. Lowell, 104 Mass. 13" court="Mass." date_filed="1870-01-15" href="https://app.midpage.ai/document/emery-v-city-of-lowell-6415996?utm_source=webapp" opinion_id="6415996">104 Mass. 13; City of Montgomery v. Taylor, 33 Ala. 116" court="Ala." date_filed="1858-06-15" href="https://app.midpage.ai/document/city-council-of-montgomery-v-gilmer--taylor-6506327?utm_source=webapp" opinion_id="6506327">33 Ala. 116; City of MacGregor v. Boyle, 34 Iowa 268" court="Iowa" date_filed="1872-06-20" href="https://app.midpage.ai/document/city-of-mcgregor-v-boyle-7095251?utm_source=webapp" opinion_id="7095251">34 Iowa 268 ; Whart. on Neg., § 262; 2 Thomp. on Neg., §.742; Wood’s Master and Servant, pp. 915, 917.