Ellis v. Wilson & Clark Construction Co.

MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

This is an action for damages for personal injuries. The Court’s jurisdiction is invoked under 28 U.S.C. sections 1332(a) (1), (c). The plaintiff’s motion of July 8, 1969 to amend the complaint so as to correct defective allegations of diverse citizenship, 28 U.S.C. section 1653, is GRANTED, Blanchard v. Terry & Wright, Inc., C.A.6th (1964), 331 F.2d 467, 469 [5], certiorari denied (1964), 379 U.S. 831, 85 S.Ct. 62, 13 L. Ed.2d 40, and the suggestion of the defendant Wilson & Clark Construction Company, Incorporated, and the motion of the defendant City of Johnson City, Tennessee, that the complaint be dismissed for want of jurisdiction, hereby are DENIED.

The plaintiff alleges his injuries were sustained at the place he was working, when the defendant construction company detonated explosives negligently, while the latter was constructing a sewer line in an easement area under contract with the defendant municipality. The construction of a sewer was the exercise by the municipality at the legislative will of its police power for the health and cleanliness of its environs. Patterson v. City of Chattanooga (1951), 192 Tenn. 267, 241 S.W.2d 291, 294 (4). It, being organized for a public purpose, is immune from this action in tort for personal injuries resulting from the alleged negligence of its co-defendant in the construction of its sewer system. Metropolitan Government of Nashville & Davidson County v. Allen (1967), 220 Tenn. 222, 415 S.W.2d 632, 633(2), 635(5-7), citing Odil v. Maury County (1940), 175 Tenn. 550, 136 S.W.2d 500, and Wood v. Tipton County (1874), 66 Tenn. 112.

The motion of the defendant City of Johnson City, Tennessee to dismiss the complaint against it for failure of the plaintiff to state a claim on which relief can be granted against it, Rule 12(b) (6), Federal Rules of Civil Procedure, hereby is

Granted. The complaint hereby is dismissed as to such defendant only.