Hardwick v. Franklin , 120 Ky. 78 ( 1905 )

Opinion by

CAief Justice Hobson

Affirming.

Appellant, Hardwiclc, while driving over a bridge on one of the public roads of Hopkins county, was injured by the bridge falling, as he alleged, by reason of the gross negligence of appellee, Franklin, while acting as special commissioner of the fiscal court, in failing to make the bridge reasonably safe, and leaving it in a defective condition. He filed this suit to recover of Franklin for the injury. The defendant filed an answer traversing the allegations of the petition, and afterwards filed a general demurrer to the petition, which was sustained by the court; and, the plaintiff declining to plead further, his petition was dismissed, and he appeals.

The orders of the fiscal court, a copy of which was filed with the petition, were as follows:

“Hopkins County Fiscal Court, April 5, Regular Term, 1900. Hon. John Gr. B. Hall, P. J. Ordered that the sum of $75 be, and the same is hereby, appropriated for the purpose of building a bridge over Lick creek, on Madisonville and Charlestown Road, and J. R. Franklin appointed commissioner; same payable out of the county levy for the year 1900. John Gr. B. Hall, Judge.

“Hopkins County Fiscal Court. Regular Term, October 19, 1900. Hon. John Gr. B. Hall, P. J. J. R. Franklin made written report as commissioner to build a bridge over Lick creek, on Madisonville and Charles-town Road, near T. G. Chapel’s, showing that said work had been done by E. Williams at a cost of $10; that being $35 less than the amount appropriated for said purpose at the last April term of this court; leaving the said balance in the hands of the sheriff, unexpended. Ordered, that court adjourn. John Gr. B. Hall, Judge.”

It will be observed that by these orders the fiscal court appropriated $75 for the building of the bridge, and appointed Franklin commissioner to execute the order; that at the next term he reported that the work had been done by E. Williams at the cost of $40, leaving $35 of the appropriation unexpended. It’will thus be seen that Franklin was commissioner to let’ out the work and accept it after it had been done by Williams. Section 4320 Ky. St., relating to the appointment of commissioners by the fiscal court, is as follows: “The fiscal court may appoint a special commissioner to let out and superintend the construction or repairing of any bridge or bridges and fix his compensation therefor : provided, however, that the supervisor shall not be liable for any defects or failure in regard to such bridge; but the special commissioner shall be liable therefor, and the court shall require him to give bond, with surety.” It is insisted for appellant that by the statute the commissioner is liable for any defect or failure in regard to the bridge which he is authorized by the fiscal court to let out, and superintend the construction of. The rule in Kentucky is that as a county is but an integral part of the State, and the fiscal court is part of the machinery of the State government, no action lies against the county or the fiscal court, or the judge or justices composing it, for injm ries done to a traveler by the falling of a bridge constituting part of a public highway, and under the control of the fiscal court, although they were guilty of gross negligence invading to repair it or notify travelers of its condition. (Wheatly v. Mercer, 72 Ky., 704; Downing v. Mason County, 87 Ky., 208, 10 Ky. Law Rep., 105; 8 S. W., 264, 12 Am. St. Rep., 473; Hite v. Whitley County Court, 91 Ky., 168, 12 Ky. Law Rep., 764, 15 S. W., 57, 11 L. R. A., 122. Following this rule it was held in Coleman v. Eaker, 111 Ky., 131, 23 Ky. Law Rep., 513, 63 S. W., 484, that the county supervisor was not liable on his bond to a traveler on the highway who was injured by reason of a defective county bridge. Section 4314, Ky. S., 1903, relating to supervisors, contains language as broad as section 4320, above quoted, relating to commissioners. In Moss v. Rowlett, 112 Ky., 121, 23 Rep., 1411, 65 S. W., 153, 358, the same rule was followed in the case of a contractor where a traveler was injured by the falling of a county bridge. The case before us can not be distinguished from those above cited. The commissioner here spent $40, and received for his services an allowance proportionate thereto, and yet ,it is sought to make him liable for $5,000 for appellant’s injuries. If such were the law, good men could not afford to fill such positions. No su,ch responsibility rests on the road overseer, and, it being the legislative policy not to make the county officials responsible to travelers on the highways for defects therein, the last clause of section 4320, Ky. St., 1903, referring to the bond of the commissioner and his liability, must be held to be.intended to protect the county, and not to include causes of action such as that sued for.

Judgment affirmed.