Respondents Brief — Gulf Refining Co. v. Mark C. Walker & Son Co.

CONTENTS.

Page

coat cee be BE EMT eg

|, ee

County not liable in contract. cceccceemeren 6

Sen SG MUNN 20k WONG oo 9

Argument .......... bless oalcdieasnds te dediadglouescipinat chia iechiniah usd as tacg

Chandler vs. Davidson County. «=D

Fryar vs. Hamilton County........ ieilicondciitaibc acacia! 34

RRS ORS TSO ROLE EUS CERT

CASES AND STATUTES.

14 American Jurisprudence, 215... pihacake. 14

Carothers vs. Shelby Co., 148 Tenn. 185........13-14-15-33-35

Central Realty Co. vs. Chattanooga, 169 Tenn, 525... 32

Chandler vs. Davidson Co., 142 Tenn 265...

9-12-13-15-18-30-32-35-39

Chattanooga vs. Dowling, 101 Tenn. 342. AE 18

Ch. 534, Priv. Acts Tenn. 1937 : ion * 4

im, Got, Priv. Acta Toma. 107... 4-10-31

CASES AND STATUTES— (Continued).

Page

Code of Tennessee 1932:

Een rain eee Peterlee Eee ae ..10-30-31

NN IID eh. peiseacos aac shuasactns scollenedas one 32

15 Corpus Juris, 569.0. Ente RO ae 14

17 Corpus Juris Secundum 715... scioicitiany

Federal Flood Control Act, 33 U.S.C.A. par. 701¢ 4

Fryar vs. Hamilton County, 160 Tenn 216... 12-13-34

Hale vs. Johnson, 140 Tenn, 182... 17-40

Hubbard vs. Crawford County, 221 Pa., 438... 15

Johnson vs. Hamilton County, 156 Tenn. 300_.11-13-17-40

Lefrois vs. Monroe County (N.Y.) 24 App. Div. 421. 15

Lunsford vs. Jolimson. ............ , 40

Lynch vs. Bank ete. (Cal.) 37 Pae. 716.0000... 9-29

Matson vs. Dane County, 172 Wis., 522 15

Meacham, Publie Officers, See. 598, 664 11-40

Mokovich vs. Independent School Dist. 22 (Minn.)

ta ce cred Sp ctnreiciscicnblecalacaneiey 15

MeAndrews vs. Hamilton County, 105 Tenn. 399... 11-36

Newberry vs. Hamblen Co., 157 Tenn. 491 10-17-40

a —————

CASES AND STATUTES— (Continued).

Page

Odil vs. Maury County... i Be eee 13-14-18-36-38

Pierce vs. Gibson Co., 107 Tenn. 224.0 15-18-39

Robertson vs. Sichel, 127 U.S. 507.0000. 11-40

Sm. &. &. yp. OO See. 2

Scott vs. Knox Co., 166 Tenn. 585... sesssesmnaneeeeeee O= 14-35

Stanley Co. vs. Coler, 190 U.S. 437.000. «86

Tyler vs. Obion County, 171 Tenn., 550.00 15

U.S. Constitution, 7th Amendment... 2

U.S. Judicial Code... Risealebcal nae shins titel sche), Sa

U.S. Supreme Court Rules, No, 35 POE STEN ol 18

Vance vs. Hale, 156 Tenn. 389... CO

Vance vs. Shelby Co., 152 Tenn. 141... 11-13-14-15-17-34-40

Wehn vs. Commissioners of Gage County, 5 Neb. 494. 15

Wood vs. Tipton Co., 66 Tenn. 112... PA 38

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1941.

GULF REFINING COMPANY,

Petitioner,

vs.

MARK C. WALKER & SON COMPANY, ) No. 1114.

HARTFORD ACCIDENT & INDEMNITY

COMPANY, and COUNTY OF SHELBY,

TENNESSEE,

Respondents.

RESPONSE OF SHELBY COUNTY TO PETITION

FOR WRIT OF CERTIORARI OF MARK C.

WALKER AND SON COMPANY, AND

BRIEF IN SUPPORT THEREOF.

STATEMENT OF THE CASE.

This Petition for Certiorari involves two separate and

distinct law suits, one of which originated in the Federal

Court and the other in the State Court at Memphis,

Shelby County, Tennessee.

This respondent, Shelby County, is a party to and in-

terested in only the suit which was brought against it in

the Federal Court,—Gulf Refining Company vs. Mark C.

Walker & Son Company, No. 1114 in this Court.

2

This respondent was dismissed by the Federal trial

judge and that Order of Dismissal was affirmed by the

Cireuit Court of Appeals.

There was, therefore, a concurrent finding of the Fed-

eral trial judge and the Circuit Court of Appeals that

Shelby County was not liable in this law suit.

This Petition for Certiorari sets out no new grievance

whatever so far as that concurrent dismissal is con-

cerned. It merely rehashes grounds presented to the

Court of Appeals and which were held by that Court as

insufficient and unavailing.

The most liberal extension of the language of Section

240 of the Judicial Code, upon which petitioner relies

for the jurisdiction of the Supreme Court, does not give

the Supreme Court jurisdiction to review the decree in

case No. 1114,—the only case with which this respondent

is concerned.

The Federal question of the violation of the Seventh

Amendment to the United States Constitution is con-

fined to ease No. 1115 in which this respondent is not a

party and has no concern.

The filing of a Petition for Certiorari in both cases

(1114 and 1115) for the decision of a Federal question

which has arisen in only one of them (1115), is an im-

proper attempt to secure a review of a concurrent opin-

ion of the Federal Trial Court and the Court of Appeals

in ease No. 1114, for which Section 240 of the Judicial

Code furnishes no authority whatever.

[eA eR

3

The separate decrees entered in the two cases in the

Court of Appeals are independent of one another and

the review and redress of one of them does not necessi-

tate any consideration or review of the other.

The reasons relied on for the allowance of the writ as

against this defendant and to which this response will

be confined are found on pages six through eight of

petitioner’s Brief and are numbered II, III, IV, and VI.

In the original and amended complaints (R. p. 5, p. 38)

the petitioner without making an election, sought to hold

Shelby County liable in damages both for breach of

contract and for negligence in tort.

(1) The liability of the County for breach of con-

tract is based on

(a) The alleged breach of a covenant in a formal

easement deed given by Gulf Refining Company to Shel-

by County and its assigns on the fourteenth day of

February, 1939 (R. p. 11), ‘‘that proper and adequate

provision shall be made for the continued use of the

existing pipe lines.”’

(b) The alleged unauthorized assignment of rights

given personally to the County in a letter of March 11,

1939, from R. W. Lynch, Petitioner’s Superintendent, to

William B. Fowler, City Engineer (R. p. 40). The letter

ts addressed to the City Engineer and the County is not

mentioned in it.

(2) The theory on which petitioner charges the

County with liability in tort for negligence is that

4

(a) ‘*The County is liable for negligence when en-

gaged in a governmental function and there is a depar-

ture from County property and a wrong to private prop-

erty.”’ (Br. p. 11). Until the decision of this case in the

Court of Appeals, petitioner had insisted that the Coun-

ty’s participation in the work involved in this litigation

was a non-governmental undertaking. This position

seems to have been abandoned by petitioner as untenable.

(b) By the Federal Flood Control Act, 33 U.S.C.A.,

par. 701 ce, which is made a part of the Original Com-

plaint, it was provided that for the control of the flood

waters of the Mississippi River, if Memphis and Shelby

County would, without expense to the United States Gov-

ernment, furnish the necessary easements and rights-of-

way and give assurance to the Government that the title

to the easements and rights-of-way were good, and agree

to indemnify the Government against claims arising

against defects in title, that the United States Govern-

ment, acting by and through its Corps of Engineers and

in accordance with plans to be made by them, would con-

struct wholly at the expense of the United States Gov-

ernment, levees, pumping stations, flood walls, flood-

ways, dams, and other works for flood control.

The City of Memphis and County of Shelby agreed

to cooperate and to furnish easements and rights-of-way

for the Federal Flood Control Project on Nonconnah

Creek south of Memphis and on Wolf River north of

Memphis and to that end sought and obtained authority

from the Legislature of the State of Tennessee for bond

issues and the levy of taxes for the expense to the Coun-

ty and City of these improvements. These enabling Acts

for the Project are Chapters 534 and 897, Private Acts

of Tennessee, 1937.

ae eA

5

The County and City obtained the necessary ease-

ments and rights-of-way, gave the necessary assurance

to the United States Government, which proceeded to

accept these easements and rights-of-way and in aecord-

ance with plans and specifications of the United States

Corps of Engineers, let contracts for the construction of

levees and other Flood Control Projects.

One of the easements obtained was that of the Gulf

Refining Company, which was in the form of a deed

from the Company to Shelby County, covering the land

of the Company on which the levee would be built and

containing covenants for rights of ingress and egress

and of indemnity and release to Shelby County, its sue-

cessors and assigns, from any and all damages by reason

of constructing the levees, flood walls, and appurtenant

structures, and the exercise and use of rights conveyed

in the easement. The consideration for the easement

granted was One ($1.00) Dollar, the construction and

maintenance of the levee, proper and adequate provision

for continued use of existing pipe lines, reversal of

drainage, and the erection and maintenance of a private

road across the levee. (R. p. 11)

Almost a month after the giving of the original ease-

ment in March, 1939, Petitioner’s Superintendent Lynch

wrote W. B. Fowler, City Engineer, a letter confirming

a conversation in Fowler’s office and giving permission

of the Gulf Refining Company to fill a ditch on its prop-

erty to protect the proposed levee. (R. p. 40.) This letter

was asked and given, according to Lynch and Fowler’s

testimony, because the United States Engineers had de-

cided that to protect the levee the filling of the ditch had

to be included in the work for which the Engineers were

6

letting contracts, although it was not contemplated when

the original easement was obtained.

The damage to the pipe lines was done to them where

they crossed the ditch and was not done to them on land

covered by the original easement.

The County was dismissed on the Original and Amend-

ed Complaint before the trial and, therefore, no wit-

nesses were introduced on behalf of the County at the

trial nor was the County represented at the trial. On

April 6, 1940, a judgment was entered against Weaver,

the subcontractor, for nine ($9,000) thousand dollars.

BRIEF AND SUMMARY.

1. Shelby County is not liable for breach of contract

either on

(a) the covenant in the easement of the 14th of Feb-

ruary, 1959, ‘‘that proper and adequate provision shall

be made for the continued use of the existing pipe lines’’

because such proper and adequate provision was made

in the plans for the new levee.

In its opinion (R. p. 426) the Court of Appeals said

of this covenant, ‘**To read into it a general guarantee

against damage would be in conflict not only with the

general tenor of the agreement and with the specific

release and acquittance of the County therein contained,

but would raise a serious question as to the authority

of the County to undertake such obligation.’’

?

Petitioner in his Brief, at the bottom of page 25, by

quoting only part of the foregoing paragraph of the

at as:

Bee

Pe cee

aia

7

opinion, gives an entirely erroneous impression of the

holding of the Court of Appeals;

(b) on the letter of March 11, 1939, from R. W.

Lynch, petitioner’s Superintendent, to William B. Fowl-

er, City Engineer, because

(1) This letter was a supplement to the contract set

out in the easement and governed by all its terms and

conditions ;

(2) This letter does not give a personal license to

Shelby County because it is addressed to William B.

Fowler as City Engineer;

(3) Because it is to be construed with the formal

easement which is made to Shelby County and its assigns,

with covenants to Shelby County and its agents, for in-

gress and egress, and for release and acquittal of all

claims for damages growing out of the construction of

the levee;

(4) The formal easement expressly grants rights not

only for the construction and maintenance of the main

levee but for ‘‘additions thereto’? and **appurtenant

structures. ’’

The Trial Court was justified in dismissing Shelby

County on the complaint and amended complaint on the

law but it would have been compelled to dismiss the

County at the end of the Plaintiff's proof on the evidence

(1) because Shelby County took no part whatever

in the construction of the levee or its appurtenances ex-

4

cal

8

cept to acquire and transfer to the United States Gov-

ernment the necessary easements and rights-of-way;

(2) because neither under the Act of Congress au-

thorizing the work nor under the work as it was actually

done, did Shelby County or any of its officers or agents

let any contracts for construction, exercise any super-

vision over the construction work or do any of it them-

selves.

(3) Beeause Plaintiff’s witnesses, Lynch, its Super-

intendent, and Fowler, City Engineer, knew the function

of the County at the time of the grant of the easement

as well as at the time of the writing of the letter of March

11th. Both parties knew (R. pp. 125, 126, 202, 203), that

the County would do no work and let no contract for the

work.

(4) Both Lynch and Fowler testified that the letter

of March 11th was asked for and given because ‘‘they’’

wanted to fill the ditch and these witnesses both defi-

nitely testified that ‘they’? meant the United States

Engineers. (R. pp. 125, 202.) Shelby County was never

mentioned,

From the testimony of these witnesses of the Plaintiff

it is quite clear that there was no difference between the

letter of March 11th and the formal easement so far as

the functions of the parties was concerned. Permission

to fill the diteh was asked for and given as an integral

part of the plans for the levee, and, as stated in the letter,

for its protection. These two documents, the formal ease-

ment and the subsequent letter relating to the same sub-

ject matter, as indicated by the language contained in

9

them, are to be construed together and the letter limited

and defined by the provisions of the easement.

Lynch v. Bank, etc. (Cal.) 37 Pae. 716;

7 C. J. 8. Tiss

6 R.C.L. p. 850, See. 240.

II. Shelby County is not liable in tort for the negli-

gence of its officers, subordinate agents or independent

contractors even though they be engaged in a private,

unauthorized undertaking and commit an active esa

on private property. =

Petitioner, in its Original Complaint (R. p. 9), made

this statement of the proximate cause of the damage and

the negligent acts which rendered the defendants, includ-

ing Shelby County, liable—‘‘The work was done in such

a negligent and careless manner that, unknown to the

plaintiff, the pipe lines and the supporting beams were

very greatly damaged, the pipe joints were broken and

the concrete supports were likewise damaged and broken,

which said damage and condition was due to the careless,

negligent and inefficient manner in which the fill work

was done and the heavy machinery was used in and about

the said pipes and concrete foundations.’’

It has been repeatedly held by the Supreme Court of

the State of Tennessee that the mere allegation that acts

which are in fact acts of mere omission or commission,

non-feasance or mis-feasance cannot be held to constitute

a nuisance merely to bring them within the provision of

the opinion in Chandler vs. Davidson County (1919), 142

Tenn. 265.

ee

10

In the recent case of Scott v. Knox County (1933), 166

Tenn. 585 at page 588, the Court said, discussing the

limits of the Chandler case:

‘*That case rests upon and must be confined to its

peculiar facts and a strained construction cannot

extend its meaning * * * These cases cannot be drawn

within the purview of the Chandler case by mere

dlegations that acts, which are in fact acts of omis-

sion or commission, amount to a nuisance.’’ (Italics

ours. )

(a) Specifically and definitely under Chapter 897 of

the Private Acts of 1937, this particular Flood Control

Project on Nonconnah Creek, Wolf River and the Missis-

sippi River, is made a governmental function for Shelby

County and for it the County is authorized to issue bonds,

levy taxes and exercise the power of eminent domain.

Such projects are also made governmental functions for

counties in Tennessee, under the Code of 1932, at See-

tions 4187, 4193, et seq.

(b) But even if the levee and the filling of the ditch

were not a public improvement and an active wrong was

done the Plaintiff by the negligence of the County em-

ployes or subcontractors, such employes or subcontrac-

tors might themselves be individually liable but Shelby

County would not.

‘Tf the injury is a necessary incident of necessary

blasting in construction of the highway, the damages

are chargeable to the condemnor, here the County.

But if the injury is not such a necessary incident,

but is the result of negligence of the contractor, then

the damages are chargeable to him.’’

Newberry v. Hamblen County, 157 Tenn. p. 491,

at p. 495.

fs Bea si 4

PS NRA Att oe ae

| aa

11

‘“We are of the opinion that the failure of the

officers and employees of the County, who, it is al-

leged, destroyed, or removed the bridge, from the

road in question, to erect barriers or place lights

or other warnings at the place where said bridge

was removed for the protection of travelers, amount-

ed to negligence, but such negligence did not render

the county liable to Plaintiff for the injuries sus-

tained under the authorities above cited.’’

Vance v. Shelby Co., 152 Tenn. 141, at p. 147.

“The demurrer of the County was on the ground

that the negligence complained of was shown by the

declaration to have been committed by an agent or

employee of the County, for which the County is not

liable. The Court was clearly correct in sustaining

this ground of the demurrer in favor of the County.”?

Johnson v. Hamilton County, 156 Tenn. p. 300.

Neither the County nor its elected officers are liable

for acts of subordinate officers:

Robertson v. Sichel, 127 U. S. 507; 22 R.C.L., pp.

487, 488;

Meacham on Public Officers, Sec. 598, 664.

There is no suggestion or even allegation that the dam-

age to the pipes was a necessary incident of the building

of the levee.

(c) The reasons given for this immunity of the County

were set out in the case of McAndrews v. Hamilton Coun-

ty, 100 Tenn., p. 399, and have been many times approved

by the Supreme Court of Tennessee:

“1, That there is no fund out of which satisfaction

could be had.

2. That it is betcer that an individual should suffer

than that the public should sustain an inconvenience.

3. That the County is a subordinate political govern-

mental division of the State.

12

4. That its function or action in regard to such insti-

tutions are legislative, and that neither the State

or County could be sued on such account.

5. That counties are instrumentalities of government

and partake of the immunities of the State while

acting in a governmental! capacity.”’

These reasons leave no room for a distinction between

the liability of a County for the negligent acts of its offi-

cers and agents in the performance of a governmental

function and the negligent acts of such officers and

agents in the perfurmance of an unauthorized and non-

governmental undertaking. If there is no County fund

available for the satisfaction of a tort committed within

the scope of the authority of the County officers, cer-

tainly there is no fund available for the settlement of

judgments rendered against a county for the unauthorized

and irregular acts of such officers. If it is better that

an individual suffer in the one ease, the reason holds

for the other. If it is contrary to public policy for coun-

ties to expend tax money for judgments for damages, a

fortiori, is it contrary to such public policy to pay damages

accruing by reason of a non-governmental undertaking.

(d) The opinion of Chandler v. Davidson County, 142

Tenn. p. 265, is an anomaly, has never been followed in

Tennessee since its rendition and was virtually overruled

by the opinion in the case of Fryar v. Hamilton County,

160 Tenn. 216, which was rendered ten years later.

13

The authority of the Chandler case was pressed upon

the Supreme Court in the following cases but was never

followed in any one of them:

Carothers v. Shelby Co., 148 Tenn. p. 185;

Vance v. Shelby County, 152 Tenn. p. 141;

Johnson v. Hamilton Co., 156 Tenn. p. 300;

Odil v. Maury County, 175 Tenn. p. 550.

In the case of Fryar v. Hamilton Co., supra, the Su-

preme Court virtually overruled the Chandler opinion:

“The theory upon which the declaration proceeds

is that the defendants negligently created and main-

tained a situation along the highway that consti-

tuted a nuisance. The facts presented by the declara-

tion disclose a failure to keep open ditches and drains

which are an adjunct to the road, and not separate

from it. The facts shown in the declaration do not

bring the case within the rule of Chandler v. David-

son Co., 142 Tenn. 266, See, also Carothers v. Shelby

Co., 148 Tenn. 186. At most the declaration charges

an omission of duty, or act of non-feasanee.’’

(160 Tenn. 216, at p. 218.)

(ce) Of course, since the express allegation in this ease

of the Guf Refining Company v. Shelby County is that

an act or series of acts of negligence broke the pipes of

the Company and since there is nowhere pleading nor

proof that such acts were unauthorized or beyond the

scope of the power of the County employes, or that this

breaking of the pipes constituted a nuisance or created

one, the facts of the Fryar case are identical with the

facts of this case and the opinion of the Chandler case is

inapplicable.

“‘The nuisance is not a mere omission of duty by

the County while exercising the delegated sovereign

74

14

power of maintaining roads and bridges, but an

active continuing wrong beyond the scope of that

power.’

Carothers v. Shelby Co., 148 Tenn. p. 185, at page

187.

‘*The creation of a nuisance is not a mere omission

of duty by the County while exercising the delegated

sovereign power of maintaining roads and bridges,

but is an active continuing wrong beyond the scope

of that power.’’

Vance v. Shelby Co., 152 Tenn. 141, at p. 147.

‘‘These cases cannot be drawn within the purview

of the Chandler case by mere allegations that acts,

which are in fact acts of omission or commission,

amount to a nuisance.’’

Scott v. Knox Co., 166 Tenn. 585, at p. 588.

Finally, it is difficult to see what comfort the peti-

tioner secures from the opinion in the case of Odil v.

Maury County, 175 Tenn. p. 550, which was delivered on

February 17, 1940, and has been published since the

hearing of this case in the Court of Appeals. There is,

of course, no statute in Tennessee which renders coun-

ties liable in tort, and the series of negligent acts by which

the subcontractor broke the pipes of the petitioner could

certainly not be reasonably held to be ‘‘a nuisance.’’ The

opinion in the ease of Odil v. Maury County, 175 Tenn.

at p. 551, contains a very clear statement of this re-

spondent’s position:

‘In 15 C. J., 569, 570, it is said: ‘‘In the absence

of statute a county is not liable for damages to pri-

vate interests by the construction of public works

and improvements.”’

With respect to the liability of a county for a tort

the text in 14 Am. Jur., Counties, pages 215, 216, is

as follows: ‘‘It is well settled that since counties

15

are organized for publie purposes and charged with

the performance of duties as arms or branches of

the State government, they are never to be held lia-

ble in a private action for neglect to perform such

duties, for acts done while engaged in the perform-

ance of such duties, or because they are not per-

formed in a manner most conducive to the safety

of employees or the public, unless such liability is

expressly fixed by statute.’’

This general rule applies to acts constituting nui-

sances. Carothers v. Shelby County, 148 Tenn., 185,

253 S.W., 708; Vance v. Shelby County, 152 Tenn.,

141, 273 S.W., 577; Tyler v. Obion County et al., 171

Tenn., 550, 106 S.W. (2d), 548; Wehn v. Commis-

stoners of Gage County, 5 Neb., 494, 25 Am. Rep.,

497 ; Lefrois v. Monroe County, 24 App. Div., 421, 48

N.Y.S., 519; Matson v. Dane County, 172 Wis., 522,

179 N.W., 774; Hubbard v. Crawford Countu, 221

Pa., 438, 70 A., 805; Mokovich v. Independent School

Dist. No. 22, 177, Minn., 446, 225 N.W., 292.

Chandler v. Davidson County, 142 Tenn., 265, 218

S. W., 222, is not in point. The substance of the hold-

ing in that case, as interpreted in Carothers v. Shelby

County, supra, and Vance v. Shelby County, supra,

is that where the county departs from the delegated

sovereign power of maintaining and repairing roads

and bridges and creates a nuisance that results in

injury, it thereby commits an actionable wrong be-

yond the scope of its authority and power.

Pierce v. Gibson County, 107 Tenn., 224, 233, 64

S. W., 33, 55 L.R.A., 447, 89 Am. St. Rep., 946, simply

applies the universal rule that a court of chancery

has authority to enjoin a nuisance.”’

4

a

Ba

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16

ARGUMENT.

Since this respondent is a party to only one of the

two cases in which the Petition for Certiorari is filed,

the respondent is not concerned with the first two

grounds, A and B, relied on by the petitioner (Br. p. 9)

for filing this petition and for the jurisdiction of this

Court. ;

Considering seriatim, the grounds set out on pages 10

and 11 of petitioner’s Brief, this respondent’s reply to

them is as follows:

C. ‘‘Shelby County is liable for breach of its con-

tracts.’’ This statement of fundamental law has never

been challenged by this respondent at any stage of this

law suit, but the Federal Trial Judge and the Judges of

the Cireuit Court of Appeals concurred in their finding

that there was no proper pleading or proof that respond-

ent had breached its contract.

D. This respondent has never denied that a personal

license, when properly evidenced by a written agreement

or other sufficient evidence, is unassignable, but this

respondent has emphatically denied and denies now that

the letter given by petitioner’s superintendent to the

City Engineer on March 11, 1939, (R. p. 40) was or could

now be reasonably construed to be a personal license or

separate from the easement deed (R. p. 14) given to this

respondent and its assigns by the petitioner. In this con-

tention both the Federal Trial Judge and the Judges of

the Cireuit Court of Appeals have agreed with the re-

spondent and held that the letter was integrated with

and a part of the same transaction out of which the

i ae ae

17

Easement Deed arose, and that therefore since the

grantor in the Easement Deed knew at the time that the

rights given would be assigned to the United States En-

gineers, that the law governing personal licenses had no

application. (R. 125, 126).

EK. Since this respondent was not a licensee but a

grantee with a right to assign, the law applicable to

negligence of personal licensees has no application what-

ever.

KF. This respondent has never denied that when

private property is damaged in a work of public im-

provement, it is equivalent to a ‘‘taking’’ of such prop-

erty within the meaning of the Constitution of the United

States and of the State of Tennessee, if and only if the

damage is necessary for the work of public improvement.

If the damage is not necessary but is a result of the neg-

ligence of the agent of the County doing the work, then

the agent is liable but the County itself is not liable.

‘‘If the injury is a necessary incident of necessary blast-

ing in construction of the highway, the damages are

chargeable to the condemnor, here the County. But if

the injury is not such a necessary incident but is a re-

sult of the negligence of the contractor, then the dam-

ages are chargeable to him.’’ Newberry v. Hamblen

County, 157 Tenn. 491 at page 495.

This rule is also laid down in Vance v. Shelby County,

152 Tenn. 141 at page 147; Hale v. Johnson, 140 Tenn.

182; Vance v. Hale, 156 Tenn. 389; Johnson v. Hamilton

County, 116 Tenn. page 300.

It is not contended that it was necessary to break the

pipe lines in order to build the levee.

18

G. Except for the ease of Chandler v. Davidson

County, 142 Tenn. page 265, which is hereafter fully

considered, there is no case in Tennessee in which a

County has been held liable for negligence in tort. The

ease of Pierce v. Gibson County, 107 Tenn. page 224,

merely holds that where an irreparable injury is about

to be done to private property, that a County may be

enjoined:

“‘Pierce v. Gibson County, 107 Tenn., 224, 233, 64 S.W.,

33, 55 L.R.A., 447, 89 Am. St. Rep., 946, simply applies

the universal rule that a court of chancery has authority

to enjoin a nuisance.’’ Odil v. Maury County, 175 Tenn.,

page 553.

The case of Chattanooga v. Dowling, 101 Tenn., page

342, was a suit against the City of Chattanooga as a

municipal corporation, and the rule of liability in tort

for municipal corporations is entirely different from the

rule applicable to counties in the State of Tennessee.

We have considered the five grounds relied on by the

petitioner for filing this Petition for Certiorari in the

Supreme Court of the United States against Shelby

County. There is not a single one of these grounds that

is covered by Section 240 of the Judicial Code or by

Rule 35 of this Court in which are set out in detail the

reasons for which the Supreme Court of the United

States will assume jurisdiction on a Petition for Cer-

tiorari and review an opinion and decree of the Circuit

Court of Appeals. We submit not only that no jurisdic-

tional ground is laid by petitioner against this respond-

ent, but that all of the grounds laid in the petition against

ee a a ei ie

OSE OG ED ce eS RAE

19

this respondent were raised and fully argued by the

petitioner in the Trial Court and the Court of Appeals

and both those courts found against the petitioner on

all of those grounds.

The motion of the County to dismiss the complaint as

to it was predicated, first, upon the fact that the County

is not liable in tort for the negligence of its employes

or for the negligence of its independent contractors in

the performance of a governmental function; that the

County is not liable for breach of contract because it had

done all it was obligated to do under the contract and

because there was an entire lack of privity of contract

between the Defendant Shelby County and the co-de-

fendants Walker and Weaver.

We believe the Court will find conclusively that not

only was the Trial Judge amply justified in sustaining

the motion of the County to be dismissed prior to the

trial, but that had he then overruled the motion and held

the County in until the close of the Plaintiff’s case, that

then and at that time the Trial Court would have been

compelled not only on the law but on the evidence intro-

duced by the Plaintiff to have granted a directed verdict

for the County and dismissed it on the evidence of this

particular case as well as on the law.

The complaint itself, citing the Act of Congress author-

izing the work, conclusively shows that the Plaintiff and

its officers were well aware of the function that the

..County had to perform with regard to the Flood Control

Project and the building of the levee and its appurtenant

structures, that neither the County, nor its officers, em-

ployes, or agents, had anything whatever to do with the

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20

actue! work of construction, with its supervision, or even

with the letting of the contract therefor. That, therefore,

there was neither a relation in contract nor a relation

of master and servant between Shelby County and the

parties who actually did the damage, even if the doctrine

of Respondent Superior could be applied to a County,

which is not the law.

It also appears from the testimony that the formal

easement deed granted by the Plaintiff aequits and re-

leases the County of this very claim for damages. The

testimony also shows that the adequate provision for the

continued use of the existing pipe lines of the Plaintiff

has been made in the new ‘levee, in accordance with the

agreement with the County to that effeet.

Defendant Shelby County Is Not Liable for Breach of

Contract Either on the Easement or on the Letter

Giving Leave to W. B. Fowler to Fill the Ditch.

In considering this phase of the appeal it is necessary

to consider not only the formal easement itself and the

letter given to the City Engineer to supplement it, but

also the testimony of the witnesses introduced by the

Plaintiff to show the facts and cireumstances as well as

the intention and knowledge of the parties.

Mr. Lynch, the Superintendent and Executive Agent

for the Plaintiff, says:

“Q. Mr. Lynch, do you mean to tell the Court

and Jury that you didn’t know that the United States

government were going to construct this levee con-

stituting this flood control project at the time your

——-

21

colupany gave, and before your company gave this

right-of-way to the County?

A. 1 didn’t see any contract or anything.

Q. 1 didn’t ask you if you saw any contract; I

asked you if you knew it?

A. I| heard about it, yes.

Q. You understood that the United States Gov-

ernment was to construct the levee?

A. Yes, sir.

Q. On the right-of-way that your company gave

to the County?

A. That’s right.

Q. Who negotiated with you, if negotiations were

with you, for this right-of-way for the Company ?

A. Mr. Fowler.

Q. Mr. Fowler?

A. Yes, sir.

Q. The same man who negotiated with you for

the permit to fill the gully?

A. That’s right.

Q. Was there any discussion at that time between

you and Mr. Fowler as to the purpose of filling

the gully?

A. No, sir.

Q. You didn’t ask him any questions about it?

A. No, sir.

Q. In that permit, you stated that it was for the

protection of the proposed levee. You knew then

that it was the protection of the levee that was to be

constructed at that point?

A. He said they wanted to fill the ditch.

Q. You stated in your letter that it was for the

protection of the proposed levee?

A. Yes, sir.

Q. And you knew that it had reference to this

levee at that point?

A. Yes, sir.’

(R. 125, 126.) (Italies ours.)

)-)

Mr. Fowler, who was also called for the Plaintiff, said:

“*Q. Did you tell Mr. Lynch what you wanted

the right of way for and who you wanted it for?

A. You mean for the levee?

Q. Yes.

A. Yes, sir.

Q. Did you tell him—did he indicate he under-

stood from anything you said that he knew you were

getting it from them on condition that the govern-

ment would build the levee?

A. I think he knew that, yes.

Q. You necessarily told him that when you asked

him to practicallly give you the right of way?

A. I think that’s so, yes, sir.

Q. When you were getting this permit to cross

the gully—I mean fill the gully—was there any dis-

cussion of the need for that, or who it was for?

A. That wasn’t a part of the right of way for

which we had secured a regular easement from the

Gulf Refining Company, and that had been sub-

mitted to the Government engineer and that ques-

tion came up afterwards, and Mr. Lynch was in my

office about another matter, I don’t recall what it

was, and I mentioned that they wanted to fill the

levee.

Q. By ‘they’ you mean the government?

A. The government wanted to fill this levee. He

wrote me a letter. Whether he took it up with his

superiors or not I don’t know, but he wrote me a

letter saying there was no objection to having the

ditch filled in.’’

(R. 202, 203.) (Italics ours.)

From these quotations from the testimony of Plain-

tiff’s witnesses it is very evident that the letter of March

11th to Fowler was a supplement to the formal easement

granted on February 14th, and that both parties knew

that the permit granted in the letter of March 11 was

23

sought and granted for the U. S. Engineers, that they

would use it and that the County would do no work

whatever. It is also evident that the parties so consid-

ered it at the time.

The filling of the diteh and the building of the levee

were both parts of the same contract and transaction

between the County and the Gulf Refining Co., since the

Plaintiff charges the County with liability for the breach

of the following clause of the easement contract:

‘“‘That proper and adequate provision shall be

made for the continued use of the existing pipe lines.”’

This clause on which the County’s liability is predicated

was taken from the easement of February 14, 1939, and

the liability of the County on account of it is to be gauged

by the other provisions of that instrument.

(1) The grantor, Gulf Refining Company, knew that

the United States Government and not the County was

to do the construction work. (Lynch and Fowler testi-

mony, supra R. pp. 125, 126, 202, 203.)

(2) This was contemplated in the easement deed as

the habendum is ‘‘To Shelby County, Tennessee, and

its assigns.

(3) Since the County was not to do the work, the

Gulf Refining Company in the easement deed and as

part of the contract with the County formally acquits

and releases the County from ‘‘any and all damages ° * °

by reason of constructing the aforesaid levee, and/or

flood walls, and appurtenant structures, or by the exer-

cise and use of the rights herein and hereby conveyed.”’

(Easement R. p. 14.)

24

(4) The casement was therefore assignable to the

United States Government and the indemnity given not

only to the County, its officers and employes, but its

agents, (R. 14.)

(5) The Plaintiff (Br. p. 3, 2nd par.) says that the

easement was given for the nominal consideration of one

dollar. This is not true as appears from the easement

itself. (R. 11.) The consideration was (1) one dollar,

(2) maintenance and construction of the levee, (3) build-

ing of a private road, (4) provision for use of pipe lines

(which might have been terminated by condemnation).

This Court, after reading the record, will not ignore

nor discount the great permanent benefit that the ‘‘main-

tenance and construction”’ of the new levee will be to the

Plaintiff. Its property was subject to overflow, which

prevented all use of it in times of high or flood water.

The new levee and the private road over it willl insure

the uninterrupted and continuous use of Plaintiff’s plant

and property, prevent damage, and provide means of

ingress and egress at all seasons. So far from ‘‘nominal’’

is this consideration that we think more properly it should

be called ‘‘inealeulable’’ in dollars and cents.

Bearing in mind that from the testimony of Lynch

and Fowler the Plaintiff and its officers knew that all

the work on the levee would be done through the United

States Government; that the only obligation of the Coun-

ty and the City with regard to the project was, as set

out in the complaint, ‘‘to provide without cost to the

United States all lands, easements and rights-of-way

necessary for the construction of the proposed levee and

a

25

its approaches.’’ It is very clear that the letter was a

supplement to and a part of the original easement and

that the duties of the parties under it were no different

from the duty of the parties under the easement. The

clause ‘‘Proper and adequate provision shall be made

for the continued use of the existing pipe lines”’ of Plain-

tiff was inserted in the easement merely to make certain

that in any plans by the Government Engineers for the

new levee ample and adequate provision for the existing

pipe lines of the Plaintiff should be made so that Plain-

tiff could continue after the construction of the new

levee to pump its gas from barges on the river as it had

in the past. There was no suggestion that the County,

which the Plaintiff knew was not going to construct the

levee or any part of it, should actively protect the pipe

lines. The language of the easement does not have any

such meaning or bear any such construction; and, indeed,

such a construction would be inconsistent with the haben-

dum of the easement, which is ‘‘to the County of Shelby,

Tennessee, or its assigns;’’ with the paragraph imme-

diately following the habendum, which is a covenant by

the Plaintiff to ‘‘the County of Shelby, Tennessee, its

officers, employes and agents,’’ and with the following

paragraph:

‘‘And for the consideration mentioned aforesaid,

the said vendor, for itself, its successors and assigns,

hereby releases and acquits the County of Shelby,

Tennessee, its officers, agents and employes, from

any and all damages to the hereinbefore described

tract of land by reason of constructing the aforesaid

levees, and/or flood walls, and/or appurtenant struc-

tures, or by the exercise and use of the rights herein

and hereby conveyed.’’ (Italics ours.)

26

This easement specifically granted land of the Gulf Re-

fining Company for ‘‘the construction and maintenance

of said levee or any enlargement thereof.’’ (R. 13.) And

the letter of March 11th, therefore, was merely a recogni-

tion by Mr. Lynch of a notice from Mr. Fowler that the

Government had decided on a structure additional and

appurtenant to the original levee. Both Fowler and Lynch

testify (R. p. 125, 202) that the letter was asked for and

given because ‘‘they’’ (meaning the U. S. Engineers)

wanted to fill the ditch.

Since all parties knew that the County was not going

to do any of the actual construction work and for that

reason the Plaintiff, Gulf Refining Company, in con-

sideration of the proposed improvement, fully acquits

and releases the County, its officers, agents and em-

ployes, from any and all damages to the tract, it results

that so long as ‘‘ proper and adequate provision was made

for the continued use of existing pipe lines, the reversal

of drainage, and the erection and maintenance of a pri-

vate road across the levee’’ (R. 12), the County had fully

discharged its obligation under the easement and is

without liability.

27

There is Absolutely No Evidence That the Letter of

March 11, 1939, Gave a Personal License

To Shelby County.

The letter is short and is as follows:

*“MEMPHIS TERMINAL

March 11, 1939.

Mr. W. B. Fowler,

City Engineer,

Memphis, Tenn.

Dear Sir:

Confirming recent conversation in your office,

this is to advise that the Gulf Refining Co. grant

you permission to fill the ditch at the west end of

our property to protect the proposed levee.

Yours very truly,

R. M. Lynch,

RML-S Superintendent.”’

(R. 40.)

It is fundamental that a written instrument speaks for

itself; that its meaning is to be deduced from its own

four corners. In other words, if an instrument creates

a personal license, it says so. (Authorities cited by

Petitioner, Br. pp. 26-28.) Under this rule, assuming what

we do not concede, that the letter granted a personal

license, that license was granted to Fowler as City (not

County) Engineer. The County is not mentioned at all,

but significantly the purpose of the permit is expressed

“*to protect the proposed levee.”’

The idea of a personal license had its inception in the

resourceful and ingenious imagination of opposing coun-

sel after he had filed his original complaint. In that there

28

is no intimation of the personal license theory, but being

met by a clear and complete defense in the County’s

motion to dismiss (R. p. 15) on the grounds:

(1) That the easement in express words contains a

release and acquittal of the claim made;

(2) That the easement is a grant to the County and

its assigns;

(3) That there was no privity between the sub-con-

tractor who did the damage and the County;

(4) That the County is not liable in tort,

counsel had to devise a new form of attack and amended

the original complaint to introduce the personal license

theory.

Why is the ‘‘you’’ of the letter. which was never ac-

knowledged and is now being used as a self-serving

declaration by appellants (the County had been dis-

missed from the suit at the time of its introduction)

which was not addressed to the County or to one of its of-

ficials and does not mention the County by name, eon-

strued by Plaintiff to mean Shelby County? Obviously

because the necessities of the invention of the personal

license theory, considering the steps already taken in the

suit, required such construction. The Plaintiff, for some

reason, had elected to sue the County without joining

the City, as was pointed out in our motion to dismiss,

and the County was the grantee in the easement.

Clearly therefore, the only reason that it is alleegd

that the letter is a permit personal to the County is that

it was part and parcel of the transaction out of which

29

the easement was given. Being so, it is given as an ad-

dendum and supplement to the easement and for the same

consideration, with the same limitations and conditions.

Therefore, the County is clearly and expressly released

and acquitted from all liability from claims for damages

on the letter, which covered expressly a fill ‘*appur-

tenant’’ to and for the protection of the ** proposed

levee’’ because both easement and letter say so. (R. p.

14, 2d par.) (R. p. 40.)

“The rule that separate written documents be-

tween the same parties and relating to the same sub-

ject matter is indicated by the language contained

therein, or satisfactorily proved by the cireumstances

under which they were executed, are to be construed

together as one transaction, has been determined by

so many authorities that there is no room for con-

troversy regarding the principle .... This rule

applies even though the separate written instruments

were not executed on the same date.’’

Lynch v. The Bank, Etc. (Cal.) 37 Pace. 716, at

page 720.

“If two or more agreements are executed at dif-

ferent times as parts of the same transaction, they

will be taken and construed together. ’’

17 C. J. 8. 715;

6 R. C. L. p. 850, See. 240.

‘‘The question of whether or not two instruments

are parts of one and the same transaction depends

on the facts of each case.’’

17 C. J. 8S. 715;

30

Shelby County Is Not Liable In Tort for the Negligence

of Its Officers, Subordinate Agents or Independent

Contractors Even Though They Be Engaged In

a Private Undertaking and Commit An

Active Wrong on Private Property.

Appellant admits that the County, as such, is generally

not liable in tort for the negligence of its officers, agents,

servants and employes, but maintains that in this in-

stance its pipe lines were broken not as the result of a

governmental function by the County but by agents of

the County who were trespassers on the privately owned

property of the Appellant where the pipe lines were

located. And further, that the County is liable under

the authority of Chandler v. Davidson Co., 142 Tenn.

265, because the destruction of Plaintiff’s pipe lines was

a nuisance committed actively by the agents of the Coun-

ty beyond the scope of their authority and the perform-

ance of any governmental function. The Chandler case

is the only authority cited by appellant for this propo-

sition.

We insist that the County’s part in the Flood Control

Project and the construction of the levee and its ap-

purtenant structures was definitely and specifically a

governmental function, made so by the general law of

Tennessee and by a Private Act of the Legislature of

1937 in which the Nonconnah Flood Control Project is

named and authorized.

Section 4187 of the Code of Tennessee of 1932 is as

follows:

‘‘Draining of swamp lands. The draining of swamp

lands of this state is a public improvement conducive

to the health of the inhabitants and the wealth of the

state.’’

PT SAU tis G0 rt RA nd Ss od LI i TI SITE ESTER FIT IS ES AROSE OS ECOG

dl

Section 4193 of the Code of Tennessee of 1932 is as

follows:

‘‘County Courts may issue bonds for building

levees. The county courts of the several counties

within the limits of which are lands rendered unfit

for occupation and farming purposes by reason of

the overflowing of the same in times of high water

in the rivers adjacent thereto, may issue bonds for

the purpose of constructing levees to protect the

same.”’

Chapter 897 of the Private Acts of 1937 expressly

authorizes Shelby County to issue bonds and levy taxes

for the purpose of this Flood Control Project on Non-

connah Creek, Wolf River, and the Mississippi River.

So not only under the general law but specifically

under a special Private Act of the Legislature, Shelby

County is authorized and empowered to levy taxes, issue

bonds and exercise the power of eminent domain, for the

purpose of building levees and flood walls on Nonconnah

Creek and the Mississippi River, and this, in so many

words, is declared to be a public improvement. It follows,

therefore, that in carrying out the work of such public

improvement, Shelby County is performing a govern-

mental function.

As we have shown, the Code of Tennessee makes the

drainage of such lands as that of Appellant a public im-

provement and a function of government.

There is no reason here to repeat the evidence set out

in this Brief from page 20 to page 23, showing that Lynch

and the officers of Petitioner knew the details of this

Flood Control Project, knew that Shelby County had

32

no active function to perform in the construction of the

levee or its appurtenant structures and, therefore, did

no work whereby agents or employes of the County might

have **committed an active wrong.”’

Petitioner’s property was ‘* privately owned,’’ subject

however to the rights voluntarily granted the County,

which of course might lawfully have acquired the same

or greater rights by condemnation.

The implication in Petitioner’s Brief (p. 42) that the

County trespassed on private property to commit an ae-

tive wrong is wholly unjustified. Ingress and egress on

private property during a work of public improvement

is never a trespass under the Code of Tennessee, Sec. 3131,

et seq., Williams Annotated Code of Tennessee.

‘*The whole insistence of Plaintiff is that the City

had no right to go beyond its 80 foot easement in

the construction of the street and that when it did

so it was a trespasser doing unnecessary injury to

Plaintiff’s land, thus giving Plaintiff a right to

compensation by an action to trespass. We think

Plaintiff's position is untenable.’’

Central Realty Company v. City of Chattanooga,

169 Tenn. p. 525, at p. 529.

Chandler v. Davidson County, 142 Tenn. p. 265.

The case of Chandler v. Davidson Co., 142 Tenn. p. 265,

is the only Tennessee authority which the Appellant

produces to justify his claim that the County is liable

in tort. This case, decided by the Supreme Court in 1919,

aside from being an anomaly which has never once been

followed in the many County cases decided by the Su-

preme Court since the date of its decision, differs in all

i isbceecielcdihereniesipmeadiaibagee Saeianiaie

33

essential particulars from the case of the Gulf Refining

Company v. Shelby County.

1. In the Chandler case, the ditch was separate from

and not a part of the highway; here the fill of the ditch

of the Gulf Refining Company was part of the levee and

joined to it for its protection. The broken pipes were

broken by an act or series of acts of negligence while

the ditch was being filled for the protection of the levee.

(2) In the Chandler case, the wrong was found to be

the continued maintenance of a nuisance, ‘‘apart from

the road and not in building the road.’’ (152 Tenn. p.

146.) Here there is no nuisance. The County has had no

active part in the wrong and the wrong was committed

in building the levee, not in a separate operation.

(3) There is no proof or pleading that the officers

of Shelby County acted beyond their authority or with-

out authority in building the levee or filling the ditch,

and yet to bring this case within the scope of the opinion

of the Chandler case, that fact must be made to appear

according to the Plaintiff's other authority, Carothers

v. Shelby Co., 148 Tenn. p. 185, at page 187:

‘The nuisance is not a mere omission of duty by

the county while exercising the delegated sovereign

power of maintaining roads and bridges, but an

active continuing wrong beyond the scope of that

power, n

The Chandler case, which was decided in December,

1919, has never once been followed by the Supreme Court

of Tennessee in any of its subsequent opinions. The rule

laid down in the Chandler case was pressed as controlling

od

the facts of the ease of Carothers v. Shelby County,

supra, which was decided in 1922, but its application

was denied.

Its application was again denied in the case of Vance

“v. Shelby County (1925), 152 Tenn. 141, at 147, in a

bitterly contested series of cases which went three times

to the Supreme Court, and in one of which the Court

said:

‘*The creation of a nuisance is not a mere omission

of duty by the county while exercising the delegated

sovereign power of maintaining roads and bridges,

but is an active continuing wrong beyond the scope

of that power.”’

Fryar v. Hamilton County (1929), 160 Tenn. 216.

We believe that this decision, delivered ten years

after the decision in the Chandler case, the Supreme

Court of Tennessee definitely overruled the Chandler

ease, although it did not say so in so many words.

The facts of the Fryar case are identical in all material

particulars with the facts of the Chandler case. The High-

way authorities of Hamilton County for a long period

of time permitted ditches and drains on the highway to

be stopped up so that surface waters accumulated. These

surface waters overflowed the right-of-way of the high-

way and accumulated on Plaintiff’s private property

and buildings, for which damage he brought suit against

the County. In denying the County’s liability the Court

said:

“The theory upon which the declaration proceeds

is that the defendants negligently created and main-

tained a situation along the highway that consti-

35

tuted a nuisance. The facts presented by the declara-

tion disclose a failure to keep open ditches and

drains which are an adjunct to the road, and not

separate from it. The facts shown in the declaration

do not bring the case within the rule of Chandler v.

Davidson Co., 142 Tenn., 266. See, also, Carothers

v. Shelby Co., 148 Tenn. 186. At most the declaration

charges an omission of duty, or act of nonfeasance.’’

(160 Tenn. 216, at p. 218.)

Surely this opinion is equivalent to a reversal of the

Chandler case for there is no material difference between

the two sets of facts except that suit in the Chandler

case was brought against the County for personal in-

juries and in the other case for property damage. Surely

also, this opinion in the Fryar case, which was delivered

ten years after the Chandler case, is a denial of the lia-

bility of Shelby County in the case of Gulf Refining Com-

pany, and it denies specifically the liability of a County

for the active wrong resulting in damage to property

privately owned. Indeed, the property of Fryar was

damaged by waters flowing from the highway over his

private lands and buildings, with no easement, license

or permit whatever.

The Supreme Court of Tennessee was called upon to

pass on the rule laid down in the Chandler ease, in Scott

v. Knox Co. (1933), 166 Tenn, 585, at p. S88 and said:

‘That case (Chandler) rests upon and must be

confined to its peculiar facts and a strained construe-

tion cannot extend its meaning. See Carothers v.

Shelby County, supra. These eases cannot be drawn

within the purview of the Chandler case by mere

36

allegations that acts, which are in fact acts of omis-

sion or commission, amount to a nuisance.”’

(Italies ours.)

The fallacious reasoning of the Chandler case seems

obvious to us. The County, being a corporation, can act

only through its officers and subordinates, Stanley Coun-

ty v. Coler, 190 U.S. 487; vet, under the Chandler opinion

the only instance where the County is itself liable is when

those officers and subordinates have exceeded their

authority and acted beyond the scope of their power.

Again, the County is a mere creature of the sovereign

state, partakes of its immunity from suit, and has only

such power as the State specifically gives it by statute.

The only County funds are derived from taxes which

are statutory, vet a wholly unauthorized expenditure of

tax money is sanctioned in the Chandler opinion for the

payment of a judgment in damages for negligence of the

County’s officers acting beyond the scope of their power

and in disregard of the authority delegated to the County

by the State. Gilbert and Sullivan could do no better.

In an opinion delivered on Feb. 17, 1940, reported in

175 Tenn, at page 550, the Tennessee Court in Odil v,

Maury County, again rejected the principles of the

Chander opinion and so the Court has refused to follow

the opinion in the Chandler ease ina sing'e instance sinee

the opinion was delivered,

In a leading case of the Tennessee Supreme Court,

that of McAndrews v. Hamilton Co., 105 Tenn. 399, which

has many times been followed and approved by the

37

Court, it was said that counties of the state enjoy um-

munity from liability in tort for the reasons:

‘*1, That there is no fund out of which satisfaction

could be had.

2. That it is better that an individual should suffer

than that the public should sustain an inconven-

lence.

3. That it is a subordinate political or governmental

division of the State.

4. That its function or action in regard to such insti-

tutions are legislative, and that neither the State

nor County could be sued on such account.

That counties are instrumentalities of government

and partake of the immunities of the States while

acting in a governmental capacity.’’

Lad |

However, petitioner in his Brief, page 42, says: ‘‘In

Tennessee there is a well recognized exception that the

County is liable if engaged in a governmental function

and there is a departure from County property and a

wrong to private property. Petitioner relies upon the

exception to hold the County liable in tort, even though

the construction of the levee and the filling of the ditch

were in the discharge of public duties.’’ If a County is

liable for the commission of a tort to property at all, of

course it would be ‘ta wrong to private property.’’ The

very idea that the County should commit a tort to its

own property is an absurdity. The whole matter boils

down to this: Was the damage to the pipe lines of pe-

titioner a necessary incident of the construction of the

levee? If it was, it amounted to a taking of petitioner’s

property for public use. For that, the Constitutions of

the United States and the State of Tennessee require

38

compensation, but since there is no assertion or proof

that the damage to the pipe lines was necessary or was

anything other than a result of acts of the subeontrac-

tor, negligent or not, the County is not liable to compen-

sate the petitioner for the damage to these pipes or the

result thereof.

The reasons given in the McAndrews case for the im-

munity of counties leave no place for the ‘‘well recog-

nized exeeption’’ of Petitioner’s Brief, p. 42. If there

is no County fund available for the satisfaction of a

tort committed within the seope of the authority of the

County officials, certainly there is no fund available

for the settlement of judgments rendered against a

County for the unauthorized and irregular acts of such

officials. If it is better that an individual suffer in

the one case the reason holds for the other. If it is eon-

trary to publie poliey for counties to expend tax mon-

ey for judgments for damages arising from the per-

formance of governmental functions, a fortiori, is it

contrary to such public policy to pay damages accruing

by reason of a non-governmental undertaking.

Except for the decision of the Chandler case, the Su-

preme Court of Tennessee from the case of Wood v.

Tipton Co., 66 Tenn. 112, cited by appellant, to the recent

ease of Odil v. Maury Co., 175 Tenn., p. 550, has always

clearly recognized the distinction between the liability of

counties as such and the liability of the officers of eoun-

ties as individuals. Never except in the Chandler case in

an action in tort has a judgment in damages for a sum

of money been sustained against a county. The rule and

distinction of liability on which we insist is recognized

Eh a

39

and exemplified in those cases where as in Pierce v. Gib-

son Co., 107 Tenn. 224, an injunction was granted to

prevent the creation or maintenance of a nuisance. The

injunction was granted against the county, it is true,

but the county was in reality a nominal party and the

effective relief was against the officers or employees of

the county who were prevented by the injunction as in-

dividuals from doing certain things or committing certain

acts which would legally constitute a nuisance. We sub-

mit, that in the opinion of the Chandler case, 142 Tenn.

265, at p. 272, the court in using Pierce v. Gibson Co.,

supra, as an authority, failed to take into consideration

the very practical and fundamental difference between

an injunction which is in personam and a money judg-

ment. Had the rule and the distinction been observed and

obeyed Davidson County would have been dismissed and

judgment rendered personally against Hirsig and the

other defendants (142 Tenn. p. 267) for their misfeasance

or nonfeasance as officers of the county.

We submit, therefore, that opposing counsel (as did the

learned Judge in the Chandler ease) has undertaken to

charge the County itself with a liability which is charge-

able, if at all, to the agents and representatives of the

County as individuals. Even if Defendants Walker and

Weaver were working on a contract with Shelby County

(and not with the United States Government) and if they

performed that contract in a negligent manner, Walker

and Weaver would be liable as individuals but Shelby

County would not be liable at all.

“Tf the injury is a necessary incident of necessary

blasting in construction of the highway, the damages

are chargeable to the condemnor, here the County.

40

But if the injury is not such a necessary incident,

but is the result of negligence of the contractor, then

the damages are chargeable to him.”’

Newberry v. Hamblen County, 157 Tenn. p. 491,

at p. 495.

‘We are of the opinion that the failure of the

officers and employee of the county, who, it is

alleged, destroyed, or removed the bridge from the

road in question, to erect barriers or place lights

or other warnings at the place where said bridge

was removed for the protection of travelers, amount-

ed to negligence, but such negligence did not render

the county liable to plaintiff for the injuries sus-

tained under the authorities above cited.”’

Vance v. Shelby Co., 152 Tenn. 141, at p. 147.

So also in

Hale v. Johnson, 140 Tenn. 182;

Vance v. Hale, 156 Tenn. 389.

and in

Johnson v. Hamilton Co., 116 Tenn. p. 300:

‘‘The demurrer of the County was on the ground

that the negligence complained of was shown by the

declaration to have been committed by an agent or

employee of the County, for which the County is not

liable. The Court was clearly correct in sustaining

this ground of the demurrer in favor of the County.”

Neither the County nor its elected officers are liable

for the negligent acts of subordinates.

Vance v. Shelby County, supra;

Liamsford v. Johnson, 132 Tenn. 615;

Robertson v. Sichel, 127 U. S. 507; 22 RCL, pp.

487, 488;

Meacham on Public Officers, Sec. 598, 664.

It results, therefore, that Shelby County itself is liable

neither for breach of contract on the formal easement,

MET OIE OEY, 5 OO ey eri

TSIM TP eter

41

since it did all that it was obligated to do thereunder,

nor on the supplementary letter of March 11th, since the

County, through its officers and agents, did none of the

work for which leave was granted in the letter, and the

officials of the Gulf Refining Company knew that the

County would do none of the work for which such leave

was granted, at and before the time it was granted on

March 11, 1939.

It is equally true that the County itself is not liable

for negligence in tort either for the performance of a

governmental function or for the performance of a non-

governmental private undertaking by its officers, em-

ployes or agents.

All grounds urged by the petitioner for the issuance of

a Writ of Certiorari by this Honorable Court were fully

presented to both the Courts below. Both the Courts

concurred in dismissing the respondent, Shelby County,

both on the law and the evidence. We insist that the de-

cisions of the lower Courts were correct in all respects

and that the issuance of a Writ of Certiorari against this

respondent should be denied.

Respectfully submitted,

F. H. GATLOR,

Attorney for Respondent,

Shelby County.

J. A. OSOINACH,

Of Counsel.

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