20 S.C. 116 | S.C. | 1883
The opinion of the court was delivered by
This action was brought to recover damages for injuries sustained by the plaintiff, occasioned, as was alleged, by a defect in one of the streets of the city of Charleston. The defense was — First. That, in the absence of a statute making the municipal corporation liable to an action for damages so occasioned, such an action could not be maintained. Second. That the place where the damages were sustained was not one of the streets of the city which it was required to keep in repair. Third. That the plaintiff, being engaged at the time the injury was sustained in a violation of law, by taking a pleasure ride on Sunday, could not maintain the action.
. The issues of law and fact were referred to a referee, who found all the issues in favor of the plaintiff, and fixed the damages at $990. To this report exceptions were filed, which need not be specifically stated here; and the Circuit judge, who heard the case upon the report and exceptions, not being satisfied with the sufficiency -of the evidence as to the question, whether the place where the injury was sustained was such a public street as the defendant was bound’ to keep in repair, recommitted the report to the referee “for such further testimony- as plaintiff may offer on said question.”
From this order both parties have appealed; but as we think the whole will be concluded by the proper solution of the question raised by the defendants’ first ground of defense, it is unnecessary to state the various exceptions of the parties. That question is, whether a municipal corporation, charged by its charter with the duty of keeping in proper repair the streets or public highways within the corporate limits, is liable to a civil action for damages at the suit of an individual who has sustained
The true theory upon which these cases rest is that a municipal corporation is a mere governmental agency established for public purposes, and stands upon a very different footing from that of private corporations organized for private gain, or for the special benefit of the corporators. As characterized by Marshall, C. J., in Fowle v. Alexandria, 3 Pet. 398, it is “ a legislative corporation, established as part of the government of the country;” and by Chancellor Harper, in White v. City Council, supra, as “ the agent of the legislature for the purposes of government.” This distinction is fully recognized in Main v. Railroad Co., 12 Rich. 82. A municipal corporation, thus being a part of the government of the State, is not liable to a civil action by an individual for any damages which he may sustain by reason of its failure to perform any of the public duties imposed upon it, unless the legislature sees fit to provide by statute for such right of action; and as it is conceded that there is no statute giving any such right of action in this case, we do not think that the action can be maintained. Although we are satisfied that the law is thus firmly settled by the authorities in this State, yet, in deference to the earnest and able argument submitted in behalf of the plaintiff, we have been induced to examine the question in the light of the authorities elsewhere.
First, it is contended that the rule in this State rests ultimately upon the case of Young v. Commissioners, supra, in which the
The duty of establishing and keeping in repair the public highways, whether within or without the corporate limits of a city or town, is a public duty, and whether such duty is imposed upon one set of public officers or another cannot make any difference in this respect.. The character of the duty imposed in both cases is the same, the result to the injured party, of a failure to perform such duty, is the same, and we are unable to see why the liability should not be the same. The public, generally, as well as the individuals composing the public, have the same, and perhaps a greater interest in having the public highways outside as well as those within the limits of incorporated cities or towns kept in good repair; for if an injury should be sustained in a remote or unfrequented part of the public highway, the consequence might be much more serious than if the same injury were sustained within the corporate limits of a city or town where relief could readily be obtained. It will not do to say, as was intimated by Earle, J., in McKenzie v. Chovin, supra, that this distinction rests upon the fact that a municipal corporation has a corporate fund while these quasi-corporations, like boards of commissioners of roads, had no such fund; for such was not the fact. These boards had the same if not greater powers of taxation that municipal corporations usually have, besides other sources of revenue arising from licenses and fines
Inasmuch, therefore, as we are unable to discover any good reason for this distinction between the liability of these quasi-corporations and that of municipal corporations proper, and as no such distinction has ever been recognized in this State, we are unwilling now to recognize it, notwithstanding the fact that it is well established in many of the States, though, in at least two, the doctrine has been pushed to its logical conclusion, and quasi-corporations, as well as municipal corporations proper, have been held liable to such an action.
The cases principally relied upon by the counsel for the plaintiff are Barnes v. District of Columbia, 91 U. S. 540, and Bathurst v. McPherson, 4 Law Rep. (App. Cas.) 256 (33 Moah Eng. Rep. 173,) decided by the judicial committee of the privy council. In the former the decision was by a divided court — a bare majority; and it is quite manifest, from an examination of the case, that the question now under consideration was not so fully considered as its importance demands. The question which seems to have engrossed the minds of the court was whether the municipal corporation could be made liable for the negligence of the board of public works, inasmuch as the members of that board were appointed by the president of the United States and not by the municipal corporation; ar 1 the opinion is mainly devoted to the discussion of the question, whether the fact that these officers received their appointment from the president, and not from the municipal corporation, would relieve the corporation from liability; and from the conclusion reached upon this question, two of the justices dissented, while two others dissented generally. The point which we now have under consideration was dismissed with the single remark that the authorities establishing the doctrine that a municipal corporation is liable to a civil action for its mere negligence “are so numerous and so well considered that the law must be deemed to be settled in accordance with them,” followed by a long list of cases, many of which do not at all sustain the doctrine for
But more than this 3 although the learned justice who delivered the opinion in Barnes v. District of Columbia expressly recognizes the distinction hereinbefore mentioned between the liability of quasi-corporations and municipal corporations proper, as so well established that it cannot be disturbed, which distinction, however, he seems to think is not founded upon any sound principle, yet among the cases cited by him to establish the liability of a municipal corporation, are several from those States where the doctrine has been carried to its logical conclusion, and no distinction between the liability of municipal corporations proper and quasi-corporations is recognized.
In Bathurst v. McPherson, the court seems to rest its decision mainly upon the ground that the defect in the highway which caused the injury complained of in that case, was the result of an act of the corporation, and declined to decide the general question whether the corporation was bound to keep all the roads in the municipality in good repair, and therefore liable for an injury sustained by reason of any defect in such roads. It is true, that in this respect the case we are considering is like the case.of Bathurst v. McPherson, for here as well as there the corporation had originally constructed the drain which caused the injury complained of, by being allowed to get out of repair. But we have not been able to find any other case in which such a distinction has been adverted to, and we see no reason why a corporation should be any more liable for an injury caused by a defect in a street at a point where the corporation had previously constructed a drain, than it would be for an injury sustained by a defect at any other point on such street.
It is true that there are cases in which a distinction is drawn between cases of misfeasance and non-feasance — a distinction, however, which is repudiated in Bathurst v. McPherson—in which it has been held that while a corporation might not be liable for mere non-feasance, in neglecting to perform its duty
But again, this case of Bathurst v. McPherson seems also to be based upon this idea, that because a corporation is liable to an indictment for not keeping its streets or highways in repair, it is therefore liable to a civil action for damages at the suit of an individual who has sustained an injury by reason of a defect in one of its streets. This doctrine certainly cannot be sustained in this country, as it would entirely overthrow what is conceded to be the well-settled rule here as to the distinction between the liability of a gwasi-corporation and that of a municipal corporation proper; and we know of no case in this country where-it has been recognized. But even granting to the case of Bathurst v. McPherson all that has been claimed for it, as establishing a doctrine contrary to that which we have adopted, we cannot regard it as sufficient to warrant us in overthrowing the well-settled rule in this State, sustained, as we believe it to be, by reason as well as by high authority;
Our view is fully sustained by decisions in Massachusetts and Michigan, two amongst the ablest courts in the Union. Hill v. City of Boston, 122 Mass. 344 (23 Am. Pep. 332), recognized and affirmed in French v. City of Boston, 129 Mass. 592 (37 Am. Rep. 393); Detroit v. Blackeby, 21 Mich. 84 (4 Am. Rep. 450), recognized and affirmed in McCutcheon v. Homer, 43 Mich. 483 (38 Am. Rep. 212). In these two cases of Detroit v. Blackeby and Hill v. City of Boston, the question is so fully and ably discussed, and the authorities, both English and American, are so fully and satisfactorily reviewed that it would be a work of supererogation to attempt to add anything to what is there so well said.
It appears also, from the course of legislation in this State,
Under the views herein presented it is clear that the action cannot, under any state of the facts, be maintained, and the other questions presented cannot arise.
The judgment of this court is that the order appealed from be reversed and that the complaint be dismissed.