Shirkey v. Keokuk County , 225 Iowa 1159 ( 1937 )

I agree with the opinion that the lower court was right in sustaining the demurrers of Keokuk County and the Board of Supervisors, but believe that the demurrer of the employee of the county, Kelly, should have been overruled.

In the majority opinion reliance is placed upon the case of Hibbs v. Independent School District, 218 Iowa 841, 251 N.W. 606. At the time that decision was rendered I was a member of this court, but I did not then and do not now agree with the holding in that case. In that case Mrs. Mary Wilson was the owner of the school bus and the driver of the bus at the time the plaintiff, a pupil in the Green Mountain rural school, was injured. The alleged negligence was the failure of the driver to close securely the door of the bus and an alleged defect in the latch of the door. The trial resulted in a directed verdict for the defendant, Independent School District, and a judgment against Mrs. Mary Wilson for $750. On appeal the judgment against Mrs. Mary Wilson was reversed, the court stating, 218 Iowa 841, at page 845, 251 N.W. 606, 608:

"Many cases are cited above to support the practically universally recognized rule that the exemption from liability in cases of this character applies as well to the school corporation, its officers, and, upon principle, it must be held to apply to its employees. Had the husband been driving the bus, it would have to be conceded that he, under the circumstances of this case, would be immune from liability. Appellant, with the knowledge and acquiescence of the school board, was performing the identical functions and rendering the same service as her husband would have rendered. If not technically an employee of the district, it is only because her husband, whose place she had taken, sustained a technical contractural relation thereto. No case directly in point has come under our observation. The rule of nonliability exists because the functions being performed are for the common good of all without any special corporate benefit or profit. No distinction in principle can be made upon the basis of which the general rule of nonliability shall not be applied to the facts of this case."

Before proceeding with an analysis of this decision, it would be well to pause and see just where such a pronouncement of law will eventually lead. It is the writer's belief that this is the only Iowa case where the driver and owner of a motor vehicle has been excused for negligent operation of his vehicle. The mantle of protection of governmental function granted Mrs. Mary Wilson gave her complete immunity for negligent operation of her own school bus. If this be the law, then the owner and operator of a motor vehicle need no longer pay any attention to the law of the road, or traffic rules and regulations, if in such operation of his motor vehicle he is engaged in a governmental function. I do not believe that such a rule of law has any basis in reason or authority. In fact, the general rule that the employee of a municipal corporation is liable to a third person injured by his negligent act of misfeasance, was the law of Iowa until the decision in the Hibbs case. Probably the best statement of the law is contained in the case of Rowley v. City of Cedar Rapids,203 Iowa 1245, 1250, 212 N.W. 158, 160, 53 A.L.R. 375. Here the city councilman Kennedy was being driven in a city-owned automobile to the city hall to look after city business, and the plaintiff was struck by this automobile on the highway. Altho the demurrer of the City of Cedar Rapids was sustained and this ruling was affirmed by the supreme court, the ruling on the demurrer filed by councilman Kennedy which was also sustained by the lower court, was reversed. In that case the court said:

"With respect to the liability of the defendant Kennedy under the allegations of the petition, a somewhat different question is presented. It is not questioned but that the allegations were sufficient to show responsibility on his part for the alleged negligence of the driver of the car. The demurrer on his behalf raised only the question that, since it was alleged, as it was claimed, that Kennedy was in the performance of his official duty, and in the exercise of a governmental function of the city, he was not liable for negligence. If it should be conceded, as the demurrer assumed, that Kennedy was engaged in the performance of a governmental duty in proceeding from one point to another on the city's business, still we think the demurrer on his behalf was improperly sustained.

"We have held, it is true, that an agent who performs a governmental function on behalf of a county is no more responsible for negligence in so doing than the corporation for which he acts. Snethen v. Harrison County, 172 Iowa 81,152 N.W. 12; Gibson v. Sioux County, 183 Iowa 1006, 168 N.W. 80. In these cases, negligence was charged on the part of the members of the board of supervisors in respect to permitting various defective conditions to exist in a public highway. In great measure, the acts charged as negligence were acts of nonfeasance, and they all related to alleged negligence in respect to the condition of the highway and the things done or omitted in preparing it for use. In Wood v. Boone County, 153 Iowa 92, 133 N.W. 377, 39 L.R.A. (N.S.) 168, Ann Cas. 1913d 1070, where it was said that it would be an anomalous doctrine that would exempt a corporation itself from liability for the doing of a lawful act in a negligent manner, on the ground of its compulsory agency in behalf of the public welfare, and at the same time affix liability upon the agent for precisely the same act, done under express authority, the act complained of was one of nonfeasance, the failure to furnish relief to a pauper. We recognized arguendo that, if the agent undertook to furnish relief, he might be personally liable for a negligent performance, although the county would not. We think that these cases and the doctrine there announced have no application to the facts pleaded here. Aside from the distinction between a county and a city, which would perhaps not be controlling where the officer of a city was engaged in the performance of a governmental duty, there is a well recognized distinction between acts of nonfeasance and those of misfeasance, and also, we think, so far as the personal liability of the agent is concerned, between an act of negligence which is committed while the agent or officer is engaged in the performance of an official duty, but which is otherwise unrelated to such duty, and the negligent performance of the duty itself. Could it be said that a member of the board of supervisors, when traveling in performance of his official duty to repair a highway, could escape personal liability for an injury negligently inflicted upon one whom he met on the way, because of the official character of his errand, although he would not be liable for a negligent performance of his mission to repair the highway? In Goold v. Saunders, 196 Iowa 380, 194 N.W. 227, we said:

"``A public official may be guilty of negligence in the performance of official duties for which his official character gives him no immunity.'

"The Supreme Judicial Court of Massachusetts in Moynihan v. Todd, 188 Mass. 301, 74 N.E. 367, 108 Am. St. Rep. 473, in a well considered opinion, in which authorities are extensively reviewed, said that the principle underlying the rule that exempts public officers from liability for negligence in the performance of public duties goes no further than to relieve them from liability for nonfeasance and for the misfeasance of their servants or agents, but that:

"``For a personal act of misfeasance, we are of opinion that a party should be held liable to one injured by it, as well when in the performance of a public duty as when otherwise engaged.'

"In Skerry v. Rich, 228 Mass. 462, 117 N. 824, it was said:

"``A public officer undoubtedly is liable for personal acts of misfeasance.'

"In Perkins v. Blauth, 163 Cal. 782, 127 P. 50, the court, while recognizing that municipal corporations are not liable for dereliction or remissness of municipal officers or agents in the performance of public or governmental functions of the city, said that the agent would be responsible for his tortious acts, although the municipality would not.

"In Florio v. Jersey City, 101 N.J. Law 535, 129 A. 470,40 A.L.R. 1353, it was held that the driver of a municipal fire truck was liable for injuries negligently inflicted by him in the performance of his duty, although the city was not liable. The court said:

"``We think a sound public policy requires that public officer and employees shall be held accountable for their negligent acts in the performance of their official duties, to those who suffer injury by reason of their misconduct. Public office or employment should not be made a shield to protect careless public officials from the consequences of their misfeasance in the performance of their public duties.'

"In Manwaring v. Geisler, 191 Ky. 532, 230 S.W. 918, 18 A.L.R. 192, where a police officer on a motor cycle struck and injured a child, the court said:

"``Nor is a peace officer exonerated from liability for an injury inflicted while in the discharge of official duties, on another, on the ground of public necessity, if the officer failed to exercise reasonable care for the protection of those whom he knew or by the exercise of reasonable judgment should have expected to be at the place of the injury, although he may not be criminally liable.'"

In the face of the decision in the Rowley case, and of the review of the authorities in Iowa and other jurisdictions contained in that case, it is difficult to see how the court in the Hibbs case could arrive at the conclusion it did.

An act of misfeasance is a positive wrong, and every employee, whether employed by a private person or a municipal corporation, owes a duty not to injure another by a negligent act of commission. It is the breach of this duty which the law imposes on all men that is involved and this general obligation to injure no man by a negligent act of misfeasance is neither increased nor diminished by the fact that the negligent party is an employee of a municipal corporation.

I would overrule the demurrer of the defendant Kelly.

OPINION ON REHEARING OCTOBER 25, 1938.