[45 Del. 463] This is an action brought by the plaintiff to recover alleged damages to its property resulting from a motor vehicle collision that occurred at the intersection of Market and Twenty-third Streets in the City of Wilmington at about 8:45 p. m. on the evening of January 27, 1949.
The complaint is as follows:
'1. On January 27, 1949, the plaintiff was the owner of a building situated on the northeast corner of Twenty-third and Market Streets, Wilmington, Delaware. On that day, at about 8:45 p. m., the defendant Gladys L. Haley was operating an automobile in an easterly direction on Twenty-third Street approaching its intersection with Market Street, Wilmington, Delaware. At said intersection there is a traffic signal control light, having been installed by the Street and Sewer Department of the City of Wilmington, which was in operation at the time and place aforesaid. According to information and belief, the defendant Gladys L. Haley had a green light in her favor, and she thereupon proceeded to drive into the intersection. At the same time and place, a fire engine, owned by the defendant The Mayor and Council of the City of Wilmington and operated by its agent or servant, George P. Christy, was proceeding in a southerly direction on Market Street approaching its intersection with Twenty-third Street, aforesaid, on its return from a fire, there then and there being no emergency. Said traffic control signal at the intersection showed red for traffic proceeding south on Market Street, aforesaid. [45 Del. 464] Notwithstanding said red traffic signal light, the defendant George P. Christy drove said fire engine, owned and operated as aforesaid, into the intersection and collided with the automobile operated by the defendant Gladys L. Haley, the latter vehicle thereafter jumping the curb and running into the building of the plaintiff, causing damage thereto in the sum of $349.01.
'2. The defendants The Mayor and Council of the City of Wilmington and George P. Christy were negligent as follows:
'a. They failed to bring the fire engine to a full and complete stop in obedience to the traffic control signal light which was 'red' against said fire engine, in violation of Section 203(a)(3) of the Motor Vehicle Laws and Traffic Regulations of the City of Wilmington.
'3. The defendant Gladys L. Haley was negligent as follows:
'a. She failed to keep her vehicle under proper control.
'b. She failed to keep a proper lookout for the fire engine owned and operated as aforesaid by the other defendants respectively.
'c. She failed to yield the right of way to said fire engine, in violation of Section 606 of the Motor Vehicle Laws and Traffic Regulations of the City of Wilmington.
'Wherefore, plaintiff demands judgment against the defendants in the sum of $349.01 plus costs.'
The Mayor and Council of Wilmington, one of the defendants, has filed a motion
The defendant's position is predicated entirely upon the [45 Del. 465] theory that at the time the collision occurred it was engaged in a governmental function, and, as such, is not amenable to suit for injuries or damages resulting therefrom.
The plaintiff contends----
1. 'The general rule of tort immunity for a municipal corporation while engaged in governmental functions is obsolete, and should not be applied today.'
2. 'Returning from a fire should not be classified as performing a governmental function.'
3. 'Liability should be imposed upon the City on the theory of a nuisance created by actions of the City.'
Albert L. Simon and James J. Walsh, of Wilmington, for plaintiff.
Herbert Warburton, Assistant City Solicitor, for defendant.
A municipal corporation has a dual character, and, as such, performs a dual function. In its first aspect it is governmental, public or legislative. In its second it is corporate, private, ministerial or proprietary. 1 Dillon, Municipal Corporations, 5th Ed., Page 181; McQuillen, Municipal Corporations, 2d Ed., Page 758; City of Seattle v. Stirrat, 55 Wash. 560, 104 P. 834, 24 L.R.A.,N.S., 1275; 63 C.J.S., Municipal Corporations, § 757(b); 38 Am.Jur., Municipal Corporations, Sec. 572.
The Courts of this country have with practical unanimity declared that a municipal corporation engaged in the performance of a governmental or public function, in the absence of statute, is not liable for injuries or damages occasioned by the negligent or wrongful acts of its officers, agents or employees. Mardis v. City of Des Moines, Iowa, 34 N.W.2d 620; Richardson v. Hannibal, 330 Mo. 398, 50 S.W.2d 648, 84 A.L.R. 508; Bradley v. City of Oskaloosa, 193 Iowa 1072, 188 N.W. 896; Hafford v. New Bedford, 16 Gray 297, 82 Mass. 297; Dargan v. Mayor etc. of Mobile, 31 Ala. 469, 70 Am.Dec. 505; Hagerman [45 Del. 466] v. City of Seattle, 189 Wash. 694, 66 P.2d 1152, 110 A.L.R. 1110; 38 Am.Jur., Municipal Corporations, Sec. 572; 63 C.J.S., Municipal Corporations, § 757(b).
Several reasons have been advanced for the immunity granted to municipal corporations when acting in a governmental capacity: (1) 'The State is sovereign and the municipality is its governmental agency; since the State may not be sued without its consent its agent cannot be.' (2) 'The municipality derives no pecuniary benefit from the exercise of a public function.' (3) 'Members of municipal departments in the exercise of governmental functions are agents of the State and not of the City and hence the doctrine respondeat superior has no application.' (4) 'It is necessary for the proper performance of governmental functions that a municipal corporation should not be liable for the negligence of its agents or employees.' (5) 'Taxes raised for specific governmental purposes should not be permitted to be diverted to the payment of damage claims.'
Writers of monographs and comments have criticized the logic underlying the above reasons. 34 Yale Law Journal, Pages 1-45, 129, 143, 229-258; 36 Yale Law Journal, Page 1-41, 759, 1039-1100; 20 Columbia Law Review, Pages, 34, 772; Harvard Law Review, Page 66.
The underlying test in distinguishing governmental functions from corporate functions, and, consequently, in determining the liability or nonliability of a municipality for the torts of its officers, agents or employees, is whether the act performed is for the special benefit of the corporate entity or for the common good of all; that is, for the public. Thus, if the damaging action or the negligence of the officers, agents or employees arises in the execution of a duty which is for the exclusive benefit of the municipality, the municipality is liable, but, if the duty in whole or in part is one imposed upon the municipality[45 Del. 467] as a public instrumentality of the State, the municipality is not liable.
63 C.J.S., Municipal Corporations, § 757(2); Hagerman v. City of Seattle, 189 Wash. 694
, 66 P.2d 1152
, 110 A.L.R. 1110; Am.Jur., Municipal Corporations, Sec. 572.
Having stated the general rule pertaining to liability or nonliability of a municipal corporation in cases involving corporate or private duties as distinguished from governmental or public duties, I now reach the somewhat difficult problem that arises in many cases; that is, whether the act complained of as being negligent or wrongful was performed by the municipality in the ...