Opinion
October 20, 1950.
Appeal from Circuit Court, Hillsborough County; L.L. Parks, Judge.
Forrest O. Hobbs, Tampa, for appellants.
Karl E. Whitaker and Ralph A. Marsicano, Tampa, for appellee.
Affirmed.
ADAMS, C.J., and TERRELL, THOMAS, SEBRING, HOBSON and ROBERTS, JJ., concur.
CHAPMAN, J., dissents.
Plaintiff-appellant's declaration alleged that John E. Goodwin, on August 16, 1948, was arrested by a policeman of the City of Tampa on a charge of drunkenness, and on the following day by the Municipal Judge of said city found guilty and ordered to pay a fine of $15.00 or serve fifteen days in the city stockade. John E. Goodwin, on April 23, 1947, by the County Judge's Court of Pinellas County, Florida, was adjudged an incompetent person and was such at the time of his arrest on August 16, 1948, and was such an incompetent person on August 17th, when ordered to serve a sentence of fifteen days in the stockade. This suit was filed in the name of Nellie Page Goodwin, as guardian of the property of and estate of John E. Goodwin, an incompetent person.
It was further alleged that John E. Goodwin was by the City of Tampa transferred, with other prisoners, from the jail in the City of Tampa to its stockade, a distance of approximately one mile. As the prisoners were walking from the patrol car into the stockade of the City of Tampa, John E. Goodwin, contrary to Section 1235, Compiled Ordinances of the City, did flee the custody of the police officer, when said officer, using more force than was necessary, drew a pistol and carelessly and negligently fired two bullets in the direction of John E. Goodwin. One of the bullets struck Goodwin and pierced his abdomen. For the relief of the wound so inflicted, it was necessary to undergo two major operations in order to save his life — due to the carelessness and negligence of the City of Tampa in the discharge of its corporate functions while acting through its police officer.
It was further alleged that as a result of said careless, negligent and unlawful conduct the City of Tampa, by and through one of its police officers, caused John E. Goodwin to suffer extreme pain and agony and permanent injuries and he claims damages in the sum of $50,000.00. The City of Tampa interposed a demurrer to the declaration on several grounds and asserted that there was no legal liability shown by the declaration. The nonliability of the city rests on the theory that the police officer, as the agent of the city, shot the said Goodwin when acting in a purely governmental or sovereign capacity, as distinguished from a corporate or proprietary capacity. The trial court sustained the city's contention, sustained the demurrer and entered a final judgment in behalf of the City of Tampa. Plaintiff appealed.
The brief of appellee city cites and relies on our holdings in Brown v. Town of Eustis, 92 Fla. 931, 110 So. 873; Gerschwiller v. City of Winter Haven, 95 Fla. 427, 115 So. 846; Kennedy v. City of Daytona Beach, 132 Fla. 675, 182 So. 228; Bradley v. City of Jacksonville, 156 Fla. 493, 23 So.2d 626; Brownless v. City of Orlando, 157 Fla. 524, 26 So.2d 504, as well as authorities of other jurisdictions. It is conceded that an Ordinance of the City of Tampa made it unlawful for a prisoner to flee from custody and prescribed a penalty for its violation. It may be assumed that the officer was without knowledge of the mental condition of Goodwin — likewise we may infer that Goodwin, at the time, made no attack on the officer or threatened him with violence, or committed any act reasonably calculated to cause the officer to believe that his life was endangered. Goodwin wanted to evade the service of fifteen days in the city's stockade.
No statute has been cited prescribing the treatment and care of municipal prisoners of Florida making time for the violation of ordinances by the officers trusted with their control and custody. Enactments of our Legislature reflect the public policy of this State as to the care and treatment of State and County prisoners. Section 954.29, F.S.A., provides that "no cruel or inhuman punishment shall be inflicted upon any prisoner, and no punishment injurious to the mind or the body of the prisoner shall be permitted, nor shall any prisoner be compelled to labor without food." The law values human life too highly to give a municipal officer the right to proceed to the extremity of shooting one attempting to escape so as to evade a service of fifteen days in a city stockade. Section 784.05, F.S.A., provides a criminal penalty for the negligent or careless injury of others. Police officers are not excepted from this provision.
In the case of Lewis v. City of Miami, 127 Fla. 426, 173 So. 150, 152, the plaintiff sued the City of Miami for failing to segregate him from other prisoners of the city having vile and loathsome venereal diseases and as a result the plaintiff contracted the same. We held the City of Miami liable and in part said: "In municipal corporations of the present day jails and workhouses are maintained for the detention of persons not only for the simple offenses that were within the range of municipal action at common law, but for a multitude of other violations that are purely mala prohibita municipala and designed to promote the corporate well being of the city and inhabitants more than to advance the performance of its governmental functions. So even in the keeping of jails and workhouses a municipality may be said to be maintaining an institution for its corporate as well as its governmental purposes, under a modern conception of municipal corporations as partly business and partly governmental institutions. See discussion in Kaufman v. City of Tallahassee, 84 Fla. 634, 94 So. 697, 30 A.L.R. 471; Maxwell v. City of Miami, 87 Fla. 107, 100 So. 147, 33 A.L.R. 682." (Emphasis supplied.) See Ballard v. City of Tampa, 124 Fla. 457, 168 So. 654.
The facts involved on this appeal are ruled by different principles of law and are easily distinguishable from the cases cited by counsel for appellee.