Opinion
February 5, 1951.
Henry M. Canby and Edmund N. Carpenter, II, (both of the firm of Richards, Layton and Finger) for plaintiff.
William H. Foulk and Herbert L. Cobin for defendants.
Action for damages for personal injuries. Motion by defendant for summary judgment based on the complaint, answer and a stipulation.
According to the complaint, the plaintiff, a member of the Levy Court of New Castle County, was severely injured on September 28, 1948 while seated at his desk in the County Building. His injuries were caused by the falling of an electric fan and wooden frame which held the fan in place on the wall. Negligence in several respects is charged. The action was brought under 6108, Sec. 38, Revised Code of Delaware 1935 for the benefit of both the plaintiff and an insurance carrier which had paid him Workmen's Compensation.
The answer, in addition to denying negligence, avers, first, that the duties of the Public Building Commission with respect to the County Building are governmental in nature and that the State has not given its consent or permission to any suits against it; second, that the custody and management of the County Building are governmental functions for which an action will not lie; third, that payment of Workmen's Compensation to the plaintiff was improper.
The County Building, or courthouse, was erected by authority of an Act approved February 26, 1913, 27 Laws of Delaware, c. 201, p. 506, and the City Building of Wilmington was erected by virtue of an Act approved the same day, 27 Laws of Delaware, c. 200, p. 496. They occupy an entire city block bounded by Tenth Street on the South, King Street on the West, Eleventh Street on the North and French Street on the East. Externally they present the appearance of a single U-shaped building; actually they are separated by a solid wall, except for a wide corridor on the first floor which extends from the "City" entrance on King Street near Tenth to the "County" entrance on King Street near Eleventh. Separate elevators serve the two. Title to the County Building is in the name of The State of Delaware for the Use of New Castle County, and title to the City Building is in the Municipal Corporation.
The Public Building Commission was created by the Legislature in 1915 by an Act now included in the Revised Code of 1935 as Article 8 of Chapter 67, Code Sections 2457 to 2464 inclusive. It is not a body corporate nor is it expressly given power to sue and be sued. One of its members is appointed by the Levy Court of the county, another by the City Council, and the third by the Governor. The members are required to take the oath prescribed by law for elective officers in the State. It is given entire charge of the County and City Buildings, and is charged with the duty of keeping and maintaining them in good repair, with their furniture and fixtures, and of seeing that they are properly furnished with heat, light and water. It is required to prepare annual separate budgets for the cost of maintaining and repairing each of them, and to present those budgets respectively to the Levy Court and the City Council.
The actual use of each building is confined, in the main, to departments, agencies and officers of the respective political subdivisions. The County Building is occupied principally by the several county courts, judges and their secretaries, a law library, and the various county offices and records — in short, a typical county courthouse. The exceptions to this statement are set forth in a stipulation filed herein.
In addition to the county offices and departments, there were in this building on September 28, 1948, the following:
(a) 4 vending machines, dispensing soft drinks, coffee, crackers, etc., a small percentage of the receipts therefrom being divided equally between the Levy Court and the City;
(b) One or two public pay phones for which no rental was charged;
(c) Office of the Board of Boiler Rules, a state agency occupying one room, for which the County received a sum estimated as being sufficient to cover the cost of its maintenance.
(d) The Family Court, a county court, although its expenses are borne equally by the County and the City.
(e) A garage used by both City and County cars, but for which no adjustment was made in the annual budgets.
It further appears that the Public Building Commission baled and sold waste paper from all offices, the proceeds of which were divided equally between the City and County.
Superior Court for New Castle County, No. 690, Civil Action, 1949.
Throughout his brief, the plaintiff treats the City Building and the County Building as one, but the Legislature has never done so. The two were authorized by separate Acts; title to them is held separately by Legislative mandate; the statute creating the Public Building Commission speaks of them as separate buildings, requires separate budgets for them, and imposes the cost of maintaining each upon the City and County, respectively. The situation, therefore, differs from that in Bell v. City of Pittsburgh, 297 Pa. 185, 146 A. 567, 64 A.L.R. 1542, where one building was shared by the City and the County. Furthermore, doubt has been expressed as to the correctness of the Bell decision by the Pennsylvania Supreme Court in Hartness v. Alleghany County, 349 Pa. 248, 37 A.2d 18.
Is the Public Building Commission immune from suit for negligence in maintaining the County Building? Under the decisions in this State, the answer must be in the affirmative.
In Carter v. Wilds, (1887) 8 Houston 14, 31 A. 715, the Superior Court held that no action of tort "will lie against such a public division of the state as the county or such a body as the levy court". In Mayor and Council, etc. v. Ewing, (1899) 2 Penn. 66, 105, 43 A. 305, 308, the Supreme Court cited the Carter case with approval, stating that the point was "well settled". In Duncan v. Willitts, (1903) 4 Penn. 493, 57 A. 369, the Superior Court held that an action of assumpsit will not lie against a county or the Levy Court Commissioners who represent the county. In Gilmore v. Commissioners of Rehoboth, (1937) 8 W.W. Harr. 124, 189 A. 284, the Superior Court again mentioned and accepted the Carter case as correctly decided, contrasting the rule applicable to counties with that governing towns and cities exercising nongovernmental functions.
Even in the case of municipal corporations, the so-called "governmental function" theory has been accepted by our highest appellate Court in Mayor and Council, etc. v. Vandegrift, (1893) 1 Marvel 5, 29 A. 1047, 25 L.R.A. 538, and by the Superior Court in Delaware Liquor Store v. Mayor and Council, etc., (1950, Del. Super.) 75 A.2d 272.
The reason given by our Courts for the rule concerning county immunity is that suit against the State or any subdivision like a county is barred because the State is the sovereign and cannot be sued without its consent; a suit against the Levy Court is likewise barred because it would amount to a suit against the County. The additional reason, assigned in The Alex Y. Hanna, ( D.C. Del. 1917) 246 F. 157, for barring suits against the Levy Court, namely, lack of corporate existence, seems not to have been mentioned in any reported decision of the State Courts.
Plaintiff's counsel strongly urges that the principle of county immunity is unsound; that a county should be responsible for torts arising out of its nongovernmental functions just as is a town or city; and that the operation of the County Building is not strictly a governmental function. Whatever the true basis may be for exempting counties from tort actions, and however strong may be the arguments against it, the rule is too firmly settled in this jurisdiction for this Court to overturn it; if modern thought and conditions necessitate its elimination, that relief must come from the Supreme Court or the Legislature. Moreover, the reason for including a Levy Court within the exemption demands a similar holding with respect to the Public Building Commission, in so far as the County Building is concerned. In maintaining it, that Commission carries on a function which usually devolves upon a Levy Court. The money for operating this building comes entirely from County funds, with insignificant exception. Payment of any judgment could come only from County taxes. In short, a suit like the present one is as much an action against the County itself as would be one against the Levy Court.
Even assuming, however, that it might be held that the Commission's immunity, like that of a municipality, applies only to governmental functions, this action would still be improper, for the maintenance of a county courthouse is such a function. County Commissioners v. Love, 173 Md. 429, 196 A. 122; Dineen v. City and County of San Francisco, 38 Cal.App.2d 486, 101 P.2d 736. The incidental and insignificant use of extremely small portions of the building by others and the receipt of a trifling income therefrom does not change its essential character. Hartness v. Alleghany County, 349 Pa. 248, 37 A.2d 18.
Because of the foregoing conclusions, it is unnecessary to determine the other questions raised. Defendant's motion for summary judgment must be granted.