Van Gilder v. City of Morgantown

Kenna, Judge: This action of trespass on the case in assumpsit was brought in the Circuit Court of Monongalia County by L. J. Van Gilder against the City of Morgantown, seeking a recovery of the value of an airplane destroyed by fire in a hangar at the municipal airport of that city. The alleged cause of action is based upon the breach of a contract of bailment for hire pursuant to which the plaintiff- *832 bailor paid to the City of Morgantown as bailee a monthly-rental of fifteen dollars that entitled him to store and keep his airplane in the defendant’s custody at its airport. The declaration alleges that due to the improper care of' the bailee the property of the bailor was wholly destroyed so that it was not and could not be returned to the bailor-upon demand, resulting in the promises and undertakings, of the bailee being violated to the damage of the plaintiff-bailor in the sum of $5,000.00. The defendant appeared and filed its written demurrer to the plaintiff’s declaration which was overruled. Thereupon the defendant filed a pleading captioned “PLEA AND STATEMENT OF DEFENSE NUMBER 1”, the-plaintiff’s demurrer to which was overruled, and upon the joint application of the parties the Circuit Court of' Monongalia County certified to this Court the following-questions: “1. Does the declaration state a good cause of action? “2. Under the facts set forth in the declaration and defendant’s plea Number 1 is the defendant operating the Morgantown Municipal Airport in a governmental or in a proprietary capacity? “3. Does the special plea and statement of defense Number 1 show a joint operation of the Morgantown Municipal Airport by the defendant and the State of West Virginia within the purview of Section 10, Article 2A, Chapter 29, of the Code of West Virginia, to such an extent as to afford the City of Morgantown immunity from this action?” Before considering the questions of law which in our opinion arise upon this certification we believe it might be well to quote in part the wording of Code, 58-5-2, being the section that governs certifications to this Court. It. reads as follows: “Any question arising upon the sufficiency of a summons or return of service, or challenge of the sufficiency of a pleading, in any case within the appellate jurisdiction of the supreme court of *833 appeals, may, * * * be certified by it to the supreme court of appeals for its decision, and further proceedings in the case stayed until such question shall have been decided and the decision thereof certified back.” It will be at once observed that the second question certified is based upon the composite allegations of fact in the declaration and the defendant’s plea No. 1. The statute does not contemplate certifications of a hybrid nature, but is confined to a “question arising upon the sufficiency of a summons or return of service, or challenge of the sufficiency of a pleading * * Furthermore, the statute requires that upon certification the further proceedings in the case be stayed until the decision is certified back, thus indicating that the accumulation of questions arising during the course of pending litigation is not proper matter of certification in a lump, but that certification applies only to each step undertaken and to questions arising separately upon each particular pleading, and is intended to apply only to questions concerning which the trial judge entertained serious doubt. Considering the first question certified as to the sufficiency of the declaration, its allegations are that on the 20th day of August, 1947, the City of Morgantown was engaged in the business of operating for hire and reward a public airport and facilities incident thereto, and that in the course of such business the City of Morgantown violated its contract of bailment for hire with the plaintiff. In all strictness, the questions that arise upon demurrer are confined to the sufficiency of the declaration’s allegations of a contract of bailment and its breach. We are of the opinion that it does allege sufficiently a contract of bailment between the plaintiff and the defendant, the City of Morgantown. The declaration alleges that the defendant, while engaged in the business of operating an airport for profit, was paid for the care and custody of the plaintiff’s airplane when not in use by him or by persons thereunto duly authorized and that by reason of the improper care thereof by the defendant it was destroyed, to the damage of the plaintiff. This we believe is sufficient. *834 McClain v. West Virginia Automobile Co., 72 W. Va. 738, 79 S. E. 731; 6 Am. Jur. 25. Although the question that follows, in utter strictness, does not properly arise upon demurrer, since the allegations of the declaration alone fairly present it, we believe may be properly discussed. The question is: Can the City of Morgantown be sued for anything done by it in the operation of an airport, or, phrased differently, is the operation of an airport on the part of a municipality the performance of a governmental or of a proprietary function? In our opinion a municipality engaged in the operation of an airport is necessarily, under our present statutes, performing a governmental function. We believe that our Legislature, by unavoidable inference, has so provided. By Chapter 12 of the Acts of 1947 [Code (Michie, 1947 Supp.) 29-2A-1-28] the Legislature rewrote, in large measure, if not entirely, the West Virginia statutes relating to aeronautics. We are not here concerned with the entire provisions of that act, which was in effect at the time of the injury complained of here, therefore we shall refer only to its provisions which we believe do affect the decision of this case. The 1947 act repealed the statute creating the “West Virginia State Board of Aeronautics” enacted as Chapter 4 of the Acts of 1931, and in its stead formed and defined the powers of “The West Virginia State Aeronautics Commission” to be composed of five members appointed by the Governor in the manner provided by the act. The commission, as an arm of the State Government, is vested with authority to control aviation on a state wide basis, one of the express provisions of Section 3 of the act reading as follows: “* * * The commission shall have general supervision and control over all airports used for commercial purposes, all state and municipal airports, all air schools, and over all phases of aeronautics within this state. * * *835 It was the evident intention of the Legislature to place the control of the operation of all airports and the administration of their affairs within the powers granted the commission. The commission was granted not only joint, but paramount, control of the active operation of all airports within the State, no matter what the ownership or classification. In the sense of equal power the provisions of the act preclude the State from operating an airport “jointly” with. another person. Absolute control is asserted by the State, through the commission, as the exercise of its police power. State ex rel. Board of Aeronautics v. Sims, 129 W. Va. 694, 41 S. E. 2d 506. It appearing that airports are operated under the 1947 act subject to such rules and regulations as the commission may prescribe, the question that then arises is whether that operation is the exercise of a governmental or of a proprietary function on the part of the State. This question has been thoroughly examined by counsel with the result that it seems clear that the weight of authority in other’jurisdictions is to the effect that the operation of airports is usually the exercise of a proprietary function. Authorities along this line will be found well collected in Rhodes v. City of Asheville, 230 N. C. 134, 52 S. E. 2d 371, decided March 23, 1949. With us, however, the 1947 act contains the following section: “Sec. 10. The acquisition of any lands or interests therein pursuant, to this act, the planning, acquisition, establishment, construction, improvement, maintenance and operation of airports and air navigation facilities, whether by the state separately or jointly with any municipalities, and the exercise of any other powers herein granted to the commission are hereby declared to be.public and governmental functions, exercised for a public purpose, and matters of public necessity. All lands and other property and privileges acquired and used by or on behalf of the state in the manner and for the purposes enumerated in this act shall and are hereby declared to be acquired and used for public and governmental purposes and as a matter of public necessity.” *836 Hence, in the absence of a showing of arbitrariness, the power of the Legislature to delegate the immunity of the State from litigation to different agencies and units of government and to declare what is and what is not the exercise of a governmental function is complete (124 A. L. R. 350; Watts v. State Road Commission, 117 W. Va. 398, 185 S. E. 570) and we are obliged to hold that the City of Morgantown was operating the airport here involved together with The West Virginia State Aeronautics Commission and subject to the paramount control of that body, and that therefore the State’s immunity under Section 35 of Article VI of our Constitution extends to this activity of the City of Morgantown as constituting a subdivision of the State’s sovereignty. It is argued that the rental of hangar space is in its nature proprietary and under no circumstances a governmental function. If we considered ourselves at liberty to decide this case under what may be termed the common-law principle distinguishing between proprietary and governmental functions, we would feel impelled to agree. Instead, however, we are here confronted with Chapters 11 [Code (Michie, 1947 Supp.) 8-11-1-8] and 12 of the Act of 1947 dealing with the same subject matter and Chapter 11 expressly providing that its use of terms or phrases shall be construed in the manner terms and phrases are expressly defined in Chapter 12. We are therefore of the opinion that the two chapters should be read in pari materia. Section 6 of Chapter 11 provides expressly that the rental of hangar space “or any other facilities” shall in no way be prevented by the terms of the act. Section 10 of Chapter 12 makes the “operation of airports and air navigation facilities, * * *” the exercise of a governmental function. Plainly, Chapter 11 specifies the rental of hangar space as an incidental facility in the operation of an airport and just as plainly Chapter 12 fixes the performance of undertakings of that nature in the category of governmental functions.’ Coupled with what we believe to be the express intention of the Legislature is considered what we believe is the common *837 understanding and custom that the rental of hangars is usually a part of the operation of an airport and we believe that the conclusion is unavoidable that in this instance the rental of hangar space by the City of Morgan-town was, under the terms of the statutes referred to, the exercise of a governmental function. We fully realize that considered segregated from the general legislative purpose of encouraging and promoting the development of aviation in West Virginia and viewed alone, it would seem a far cry to say that the rental by the City of Mor-gantown to L. J. Van Gilder of space for his airplane for fifteen dollars per month amounts to the exercise of its sovereignty by the State of West Virginia. When we consider that liability in connection with the operation of an airport might result in the obliteration financially of many of our smaller cities and that that fact would prevent other small cities from embarking upon an enterprise in which the public good is involved, the fact that the development of aviation had prompted the Legislature to extend the State’s immunity becomes more apparent. This case could impair the financial existence of the City of Morgantown if based upon a general catastrophe. Fortunately it does not. The principle is the same. For the foregoing reasons our reply to the certified questions is: (1) The declaration does state a good cause of action for the breach of a contract of bailment for hire; (2) improperly propounded and hence not answered; (3) the Morgantown Municipal Airport, as shown by the allegations of defendant’s Special Plea and Statement of Defense No. 1 was, at the date of the injury complained of, being operated by the City of Morgantown in the performance of a governmental function under the provisions of Section 10 of Chapter 12 of the Acts of 1947 and therefore the immunity of the State of West Virginia from being made a defendant in any court of law or equity covers its conduct in such operation. The case will be remanded with the questions so answered. Affirmed.