Moore v. Murphy

119 N.W.2d 759, 254 Iowa 969, 1963 Iowa Sup. LEXIS 658

• Court: Supreme Court of Iowa
• Decided: February 12, 1963
• Docket: 50720
• Status: Published

Opinions

Stuart, J.

— Plaintiff brought an action for damages against Johnson County, the Board of Supervisors, and A. J. Murphy, sheriff, alleging he sustained personal injuries while in the sheriff’s custody. Motions to dismiss the action filed on behalf of each defendant were sustained by the trial court. Plaintiff appeals from the court’s ruling sustaining the motion to dismiss as to A. J. Murphy.

The trial court held A. J. Murphy was in the performance of his duties as required by law: “He was working in his governmental capacity and if he was guilty of any acts of negligence it was nonfeasance rather than malfeasance or misfeasance, and under the numerous holdings of the Iowa Supreme Court he is not liable for damages in case of nonfeasance.”

There is a general agreement between both parties and the trial court that an officer or employee of a county is not personally liable for acts of nonfeasance in connection with his duties as such employee, but is liable for acts of misfeasance which occur while in the performance of his duties. Parties cite an almost identical list of authorities in support' of their conflicting positions. Montanick v. McMillin, 225 Iowa 442, 280 N.W. 608; Shirkey v. Keokuk County, 225 Iowa 1159, 275 N.W. 706, 281 N.W. 837; Perkins v. Palo Alto County, 245 Iowa 310, 60 N.W.2d 562; Wittmer v. Letts, 248 Iowa 648, 80 N.W.2d 561; Genkinger v. Jefferson County, 250 Iowa 118, 93 N.W.2d 130; Conrad v. LeMoines, 253 Iowa 320, 112 N.W.2d 360.

The case of Montanick v. McMillin, 225 Iowa 442, 280 N.W. 608, contains a comprehensive analysis of the Iowa authorities and cites many cases from foreign jurisdictions. It clearly distinguishes between acts of nonfeasance and acts of misfeasance as they affect the personal liability of an employee or agent, and is the basis for the rule announced by the trial court quoted above. The narrow issue to be determined in this appeal is whether plaintiff in his petition pleads acts of negligence constituting misfeasance or nonfeasance.

Plaintiff alleges: “That on or about the 8th day of May 1959, while plaintiff was a prisoner in the Johnson County jail, the defendant, A. J. Murphy, in his capacity as sheriff of Johnson County, Iowa, did remove said plaintiff from his cell contrary to the statutes of the State of Iowa, and did order him to climb a ladder placed in position by the defendant, A. J. Murphy. That said ladder was wobbly and plaintiff complained of said fact, that defendant Murphy then held ladder and told plaintiff to paint. That defendant Murphy then walked away from said ladder allowing it to fall causing * * * injuries * * *.

“3. That said defendant was negligent at said time and place in the following particulars: * * *

“(2) That he did order plaintiff on a ladder knowing that it was unsafe.

“(3) That he did not continue to hold said ladder to keep it from falling.”

Nonfeasance is the omission of an act which a person ought to do. Misfeasance is the improper doing of an act which a person might lawfully do. 35 Am. Jur. 1023, Master and Servant, section 586. This distinction is amplified in the case of Gregor v. Cady, 82 Maine 131, 136, 19 A. 108, 17 Am. St. Rep. 466, 469, in the following language:

“ ‘A distinction exists between nonfeasance and misfeasance —between a total omission to do an act which one gratuitously promises to do and [the other] a culpable negligence in the execution of it. * * * If a party makes a gratuitous engagement and actually enters upon the execution of the business and does it amiss through the want of due care by which damage [danger] ensues to the other party, an action will lie for this misfeasance.’ ”

The allegation in plaintiff’s petition that the sheriff did not continue to. hold the ladder amounts to an allegation that he entered upon the execution of a promise to hold the ladder and negligently let go of it. This is an allegation of conduct constituting misfeasance.

Another test to determine the liability of an employee of a county to an injured party is set forth in the case of Genkinger v. Jefferson County, 250 Iowa 118, 120, 93 N.W.2d 130. We state:

“An examination of these authorities shows the rule to be well established that as to the county and the individual members of the Board of Supervisors there is no liability for nonfeasance in the exercise of a governmental function. As to employees the rule is that a tortious act which causes injury to another in violation of a duty owed to the injured party makes the employee personally liable.” (Emphasis supplied.)

An employee is not personally liable for a breach of duty to the general public although a particular person may be injured thereby. He is, however, liable for injuries resulting from the breach of a duty to the injured party. This court in Smith v. Miller, 241 Iowa 625, 628, 40 N.W.2d 597, 14 A. L. R.2d 345, said:

“Aside from statutory requirements a sheriff owes a general duty to a prisoner to save him from harm and he is personally liable for negligence or wrongful acts causing the prisoner’s injury or death.” (Citations.)

As applied to the instant case, the sheriff had a duty to the public to keep custody of the plaintiff and this duty included the right to require plaintiff to perform labor. He did, however, have a duty to furnish plaintiff safe equipment and a duty to refrain from ordering him to climb an unsafe ladder. Having undertaken the holding of the ladder, he also had the duty to plaintiff to continue to hold it so long as was necessary for plaintiff’s safety. The allegations of subparagraphs (2) and (3) of paragraph 3 are allegations of breach of duties to plaintiff as an individual and if proven would support a verdict for plaintiff.

Research has failed to disclose a case in this or other jurisdictions factually similar to the instant case. The closest one we have been able to find is the case of Dudley v. Community Public Service Co., CCA Tex., 108 F.2d 119, 121, in which it was held a line construction superintendent and foreman, who chose time, place and manner of replacing pole under power line, assisted in work, and failed to have proper equipment, to de-energize power line, to warn or instruct employee subsequently electrocuted, or to take other precautions, would be guilty of misfeasance rather than nonfeasance and hence liable for employee’s death.

¥e hold that plaintiff’s petition stated a cause of action against A. J. Murphy individually and that the court erred in sustaining the Motion to Dismiss as to said A. J. Murphy.— Reversed.

Thompson, Peterson, Thornton, and Snell, JJ., concur. Moore, J., Garfield, C. J., and Hays, J., concur specially. Larson, J., takes no part.