Obrázky stránek
PDF
ePub

(214 Ala. 522, 108 So. 539.)

prisoners in jails and workhouses. We are not inclined to extend it. We can see no basis of justice for holding the municipality liable for the acts of its agents engaged in the construction or operation of public works, or other corporate function, at the suit of a third person free to avoid danger, or an employee who voluntarily engages in the service, and deny the same protection to one put to involuntary labor under like conditions.

-liability for

vict.

We therefore hold that, where the prisoner is sentenced to work upon an enterprise deinjury to con- fined by our law as corporate in character, the municipality is liable for injury or death proximately resulting from the wrongful act of its agent in the course of such employment; that, if injury results from the negligence or wrongful act of the superintendent of the work, and the prisoner's employment therein, the municipality is not exempt because such corporate agent was also a police officer having custody of the prisoner.

The trial court erred in overruling the demurrer to plea No. 3.

Reversed and remanded.

Sayre, Thomas, and Miller, JJ.,

concur.

Gardner, J., dissenting:

The rule generally recognized by the authorities as applied to concrete cases, here applicable, is stated in 19 R. C. L. p. 1125, § 404, as follows: "A municipality is not liable for the injurious results of confining a person in an insufficiently heated or otherwise unsanitary jail, prison, workhouse, lockup or calaboose, or for the negligence of the persons in charge of the jail in allowing it to be burned, thus causing the death of a prisoner, or for personal injuries arising out of the work at which the inmate of a pris

on is put, or from the assaults of other prisoners, even if the public authorities should have known of the danger. In such cases it can make no difference that the injured person was confined in prison for violation of a city ordinance, or that the city derived a revenue from the products of the labor of the inmates of its prison."

The foregoing section is cited in the majority opinion with the statement that the "rule applies to workhouses and injuries to prisoners put to work as a penalty for offenses; such work being incidental to the execution of the sentence." (Italics supplied.)

The words, "such work being incidental to the execution of the sentence," constitute the turning point of the question here considered, and lead logically to a contrary conclusion. Had plaintiff's intestate met his death by the wrongful act of the guard while in prison or being guarded at a workhouse, confessedly, under all the decisions, the rule of nonliability of the city would apply. The mere fact, therefore, that he was being worked on the streets, rather than at a workhouse or elsewhere, as a penalty for the offense, was a mere incident, and cannot be of controlling influence here. The mere incident of the place of work should not be made to operate a destruction of the well-recognized rule of nonliability in cases of this character.

The only authority cited in the majority opinion which is concededly directly in point (Nisbet v. Atlanta, 97 Ga. 650, 25 S. E. 173) is also directly opposed to the majority view. I am persuaded it is correct, and supported by the decided weight of authority.

I therefore respectfully dissent. Anderson, Ch. J., and Somerville, J., concur.

ANNOTATION.

Liability for death of or injury to prisoner.
[Prisons and Jails, § 2.]

I. Introductory, 94.

II. Of county for unsanitary or improper condition of jail, 95.

III. Of county for misconduct or negligence of those having convicts in charge, 96.

IV. Of municipality for unsanitary or improper condition of jail, 97.

V. Of municipality for negligence or misconduct of those in charge of prisoners, 100.

a. Generally, 100.

b. For injury to prisoner resulting from the burning of the prison,

103.

c. For injury to prisoner by assault of other prisoners, 104.

VI. Of the state and public institutions, 104.

VII. Of lessee of convict labor:

a. In general; relation between lessee and convict, 106.

b. Assumption of risk; fellow-servant rule, 107.

c. Contributory negligence, 108.

d. Particular instances, 109.

VIII. Of officers in charge of prisoners for improper treatment thereof, 111. IX. Of officers in charge of prisoners for injury inflicted by one prisoner upon another prisoner, 114.

X. Photographing, taking of Bertillon measurements, etc., 116.

XI. Miscellaneous, 116.

I. Introductory.

The annotation deals with liability for injuries to persons confined in prison, whether such persons are convicts in the strict technical sense of the term, or are confined in prison awaiting trial, or for any other reason. The annotation is not concerned with the liability of a municipality for mob or riot. See, as to that question, annotations in 13 A.L.R. 751, 23 A.L.R. 297, and 44 A.L.R. 1137 [Municipal Corporations, §§ 222, 223]. The question as to liability for false imprisonment is also beyond the scope of the annotation, except so far as the false imprisonment is predicated upon the condition of place of confinement or mistreatment of the prisoner as the result of which he sustains a bodily injury. Generally as to liability of jailer for false imprisonment, see annotation to Clark v. Kelly, A.L.R.-.

It was well settled at common law that a mere territorial subdivision, such as a county or a hundred, was not liable for the negligence of its officers. 19 R. C. L. 1081. A large class of cases in which private parties are held liable

arise from injuries to persons or property by the momentary negligence of persons in the employ of some corporation or individual, who is sued rather than the negligent employee because he is more able to respond in damages, and it is of course well settled that one who has the benefit of another's services must bear the burden of his defaults while engaged in such service, provided such person was under the control of him for whom he was acting rather than of an independent contractor. This principle is known as the rule of respondeat superior, and, while applicable in full force to private individuals or business corporations, it is well settled that when a duty is imposed upon a city or town by statute, to be performed by officers whose duties are prescribed by law, even if the municipality appoints and pays them, it is not responsible for their acts, for they are not acting for its benefit nor are they under its direction and control, and even when a function is voluntarily assumed by a city or town, and the duties of the officers who perform the

[merged small][merged small][merged small][merged small][merged small][ocr errors][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small]

Pennsylvania. Cousins v. Butler County (1919) 73 Pa. Super. Ct. 86.

For in caring for prisons a county is exercising part of its governmental or police power, and is not liable for the illness of a prisoner therein who contracts such illness by reason of the negligence of the county commissioners who fail to keep the jail in repair and suffer it to become unsanitary. White v. Sullivan County (Ind.) supra. The court in the instant case said: "It is settled, and rightly settled, that for the negligence of officers whose duties require an exercise of such a governmental power as the police power, neither a county nor a city is liable."

And in Hite v. Whitley County Ct. (Ky.) supra, it was held that the county was not liable for the impairment of health of a person confined in a jail, caused by its bad condition, under a statute which provided merely for the liability of members of the county court whose names were not recorded in favor of the needed repairs on the jail.

The basis of this nonliability according to the holding in Webster v. Hillsdale County (Mich.) supra, is that counties are involuntary territorial and political divisions of a state, created for the convenience of government, with certain duties imposed upon them as a part of the machinery of the state, for the nonperformance of which no liability should attach any more than it would to the state itself.

And in Cousins v. Butler County (Pa.) supra, a county was held not liable to a prisoner who was injured. by a fall from a stairway in the county jail when an iron railing at the top of the stairway gave way by reason of the failure of the county commissioners to keep the jail in proper repair, inasmuch as the erection and maintenance of a jail is a governmental function, in the exercise of which the county as a political subdivision of the state is not liable for the negligence of its agents and officers.

And the county is not liable under such circumstances even though a statute expressly imposes upon it the duty of maintaining the county jail in suitable and convenient repair. Ibid.

In Cousins v. Butler County (Pa.) supra, the court alludes to the distinc.. tion between the acts of municipalities. and other governmental agencies done or performed in their ministerial or corporate character in the management of property for their own benefit or in the exercise of powers assumed voluntarily for their own advantage, and, on the other hand, those broader functions of government proper, delegated by the state, to be performed by certain public instrumentalities, and points out that as to the former, the municipality may be held liable for the negligence of its employees and agents, while as to the latter, it is in

vested with the immunity which attaches to the sovereign; and the court observed that the distinction was especially applicable to counties,

which are but parts of the machinery that constitutes the public system, and are organized almost exclusively with a view to the policy of the state at large, for purposes of political organization and civil administration, in matters of finance, of provision for the poor, and especially for the general administration of justice.

In Watkins v. Atlantic County (N. J.) supra, it was held that the duty imposed upon the board of freeholders by statute to take care that witnesses detained in the county jail shall be "comfortably lodged and provided for, and no further restricted of their liberty than is necessary for such detention," was a governmental duty of a purely public character, for neglect of which no private action lies in favor of a person specially damnified, in the absence of a statute conferring such right of action. The court construed the statute as meaning that the board should exercise a governmental supervision of the jail in that behalf, and should see to it that the necessary moneys were provided to furnish the prescribed accommodations, and that the board was not in any sense constituted the custodian of detained witnesses. The court says: "It is well settled in this state as a general rule that an action will not lie in behalf of an individual who has sustained special damage through the neglect of a municipal corporation to perform a public duty, unless the right of action is conferred by statute. The same rule is applied where the employees or officers of a municipal corporation are negligent in the performance of such duties, it being held that the doctrine of respondeat superior will not operate to create a liability on the part of the corporation in such a case."

a

[blocks in formation]

suffered by the latter due to the misconduct or negligence of those having them in charge.

Thus, in Hammond v. Richmond County (1883) 72 Ga. 188, it was held that the county was not responsible in damages for the tort of one of the chain-gang guards in unlawfully beating a convict, nor the negligence of the other guards in not protecting the convict from the unlawful beating. See also Doster v. Atlanta (1884) 72 Ga. 233.

Counties are not liable for injuries resulting from the negligence of their officers or agents, unless made so by statute; and in Crause v. Harris County (1898) 18 Tex. Civ. App. 375, 44 S. W. 616, it was held that a statute providing that no convict shall be compelled to labor at any kind of work or at any avocation that would endanger his life or health imposed no liability on the county for the acts of its officers in imposing labor or work upon a convict that would endanger his life; and a county was held not liable for personal injuries to a convict forced by the officer in charge to engage in work hazardous to life and health, with which hazards the officer was familiar.

In Bailey v. Fulton County (1900) 111 Ga. 313, 36 S. E. 596, it was held that a county was not liable for a tort committed by a chain-gang superintendent in unlawfully imprisoning one and compelling him to work, although the same was done in obedience to instructions from the county authorities, in view of a statute providing that municipal corporations are not liable for the torts of policemen or other officers engaged in the discharge of the duties imposed on them by law, which statute is applicable to like torts committed by county officials.

County and city officials who obeyed a statute authorizing and directing them to establish a county penitentiary were engaged in a public duty which concerned the administration of criminal justice, and were a mere instrumentality selected by the state;

a complaint alleging that the plaintiff, a prisoner in the penitentiary, was injured while attempting to

operate a piece of machinery in the penitentiary, due to the negligence of the officers of the prison in compelling him to approach the machinery, and not providing proper means for the execution of the business of the institution, does not state facts sufficient to constitute a cause of action. Alamango v. Albany County (1881) 25 Hun (N. Y.) 551.

However, a statute requiring county commissioners to see that prisoners are kindly and humanely treated imposes upon such commissioners a ministerial duty, and they are liable to one injured as the proximate result of their nonfeasance or misfeasance in the performance of such duty. Hale v. Johnston (1918) 140 Tenn. 182, 203 S. W. 949.

And the statutory duty above referred to was held to be one owed both to the public generally and to the prisoner individually. Ibid.

Thus, where corporal punishment was a part of the system of discipline of a workhouse, and was constantly practised in the most brutal manner for many years, and the county commissioners knew, or by the exercise of ordinary care could have known, of its existence, the court held that they were liable for the act of a workhouse guard in inflicting such punishment to such a brutal extent on a convict that the latter died as a result thereof, the court being of the opinion that the failure of the commissioners to perform their statutory duty of seeing that prisoners were kindly treated was the proximate cause of the punishment inflicted upon the deceased convict, because, if they had been diligent to see that corporal punishment was not practised as a part of the discipline of the workhouse, it is apparent the deceased would not have been killed in the manner in which he was. Ibid.

IV. Of municipality for unsanitary or improper condition of jail.

The cases almost unanimously hold that, in erecting and maintaining a prison or lockup, a municipal corporation is exercising a purely governmental function, and is therefore not liable to a person imprisoned therein, 46 A.L.R.-7.

[blocks in formation]

---

[ocr errors]

49 Ill. App. 543. Iowa. Lahner v. Williams (1900) 112 Iowa, 428, 84 N. W. 507. Kansas. La Clef V. Concordia (1889) 41 Kan. 323, 13 Am. St. Rep. 285, 21 Pac. 272; New Kiowa v. Craven (1891) 46 Kan. 114, 26 Pac. 426. Kentucky. Jones v. Corbin (1907) 30 Ky. L. Rep. 374, 98 S. W. 1002. Maine. Mains V. Ft. Fairfield (1904) 99 Me. 177, 59 Atl. 87, 17 Am. Neg. Rep. 523.

Minnesota.

--

-

Gullikson v. McDonald (1895) 62 Minn. 278, 64 N. W. 812. New York. Eddy v. Ellicottville (1898) 35 App. Div. 256, 54 N. Y. Supp. 800. Ohio.

Alvord v. Richmond (1896) 3 Ohio N. P. 136, 4 Ohio S. & C. P. Dec. 177.

[ocr errors]

West Virginia. Shaw v. Charleston (1905) 57 W. Va. 433, 50 S. E. 527, 4 Ann. Cas. 515. Canada. Nettleton V. Prescott (1908) 16 Ont. L. Rep. 538, 12 Ann. Cas. 790.

Australia. Gibson v. Young, 21 N. S. W. L. R. 7; Davidson v. Walker, 1 N. S. W. L. R. 196, as cited in 12 Ann. Cas. 797, note.

Thus, in Blake v. Pontiac (Ill.) supra, it was held that a city was not liable for the neglect of its calaboose keeper in not keeping the calaboose clean, since a city, in the enforcement of its police regulations, cannot commit a wrong through its officers in such a way as to render it liable for his torts.

And in Lahner v. Williams (1900) 112 Iowa, 428, 84 N. W. 507, it was held that a municipal corporation was not liable for damage to the health of one who was arrested without legal cause or excuse and confined in a dirty, filthy lockup or calaboose used by the municipality as a prison, the

« PředchozíPokračovat »