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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1942
- **Citation:** 316 U.S. 682

## Text

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
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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.

bas

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43086415_1020%3A2. Public record. Not legal advice.