This case was originally decided in Shirkey v. Keokuk County et al., 275 N.W. 706. A rehearing was granted and the former opinion is hereby withdrawn, except as reaffirmed and modified herein.
The plaintiff Martha Shirkey, appellant, commenced this action against Keokuk County; Ned Wood, J. Forest Embree, and Fred X. Kendall, members of the board of supervisors of said county; and against William Kelly, an employee of the defendant county engaged in the operation of a tractor for and on behalf of said county. Plaintiff alleges in her petition:
"1. That on December 4, 1935, at more than thirty minutes after sunset on said day, plaintiff was riding in a Ford automobile, owned and driven by her husband, on a county road about a mile and a half northwest of Richland in Keokuk County, Iowa;
"2. That the defendant, William Kelly, was an employee of Keokuk County under the direction and control of the defendant Board of Supervisors, and was operating a county tractor on the east or left side of said highway, traveling in a southerly direction;
"3. That said Kelly negligently, recklessly, carelessly, unlawfully, and in an incompetent manner, drove or operated said tractor at a high rate of speed, without lights as required by law, on the left or wrong side of the road, when the evening was quite dark, and thereby caused the same to crash into the automobile in which plaintiff was riding; and by reason of such careless, reckless, negligent, unlawful, and incompetent operation of said tractor by said William Kelly, a collision was caused whereby plaintiff was crushed, broken, rendered sick, ill, and disabled, as a result of which plaintiff suffered damages in the sum of $26,446.60."
Three demurrers were filed by the defendants; one by defendant Keokuk County, one by the defendant board of supervisors, and one by the defendant William Kelly, the operator of the tractor in question and an employee of the defendant county. *Page 1183 Each of these demurrers was sustained by the lower court and judgment entered against plaintiff for costs. Plaintiff appeals.
[5] I. The facts and the discussion of the law pertaining to the separate demurrers filed by Keokuk County and by the Board of Supervisors of said county are fully set out, considered, and discussed in the opinion in Shirkey v. Keokuk County, 275 N.W. 706. The court sustained these two demurrers, and we are satisfied with the court's ruling in so doing and adhere to and reaffirm our former ruling and opinion thereon. The reasons for this court's ruling thereon are fully set out, considered, and discussed in our former opinion. We are satisfied therewith and deem it unnecessary to give them further consideration except by reference thereto. It is therefore our conclusion that there was no error in the lower court's ruling on the separate demurrers of Keokuk County and its Board of Supervisors.
[6] II. The remaining question is whether or not the lower court erred in sustaining the defendant Kelly's demurrer to plaintiff's petition.
Appellees contend that the defendant Kelly, in performing the services in which he was engaged, was in the performance of a governmental function for Keokuk County and that, inasmuch as the county is not liable for its negligence while in the performance of a governmental function, it necessarily follows that its employee who was engaged by the county in the performance of such service is likewise exempt from liability.
Appellant contends that the action of the defendant Kelly constituted an unlawful act amounting to misfeasance and positive negligence on his part for which he is personally liable regardless of his employment by Keokuk County.
The substituted petition alleges:
"That the said William Kelly unlawfully and in an incompetent manner drove or operated said tractor * * * by driving it at a high rate of speed for such a vehicle, without lights as required by law * * * and on the * * * left, or wrong side of the road, when the evening was quite dark, and thereby causing the same to crash into the automobile in which plaintiff was riding, and by reason of such careless, reckless, negligent, unlawful, and incompetent operation of said tractor * * * by said William Kelly, a collision was caused whereby plaintiff was crushed, broken, rendered sick, ill, and disabled." *Page 1184
The demurrer to this petition admits these facts, and the question for consideration therefore is whether or not the defendant, William Kelly, for his own recklessness, negligence, and unlawful acts can be held liable for the injuries caused by him, notwithstanding his employment by Keokuk County.
Appellees contend that the defendant Keokuk County, in the performance of the work being done by and through its employee, the defendant William Kelly, was engaged in the performance of a governmental function by reason of which neither the defendant county nor its employee, William Kelly, is liable for the acts complained of. Appellees also contend that under the doctrine announced in Hibbs v. Independent School District, 218 Iowa 841,251 N.W. 606, and other like cases referred to in Shirkey v. Keokuk County et al., Iowa, 275 N.W. 706, there can be no liability on the part of the defendant Kelly, because Kelly was engaged in the performance of a governmental function for Keokuk County.
Since the rendition of the opinion in the Hibbs case, and since the rendition of the original opinion in Shirkey v. Keokuk County et al., Iowa, 275 N.W. 706, this court, in a well considered opinion in the recent case of Montanick v. McMillin, 225 Iowa 442,280 N.W. 608, laid down the rule that an employee of a municipality is liable for an act of misfeasance on his part, notwithstanding the fact that he is engaged in the performance of a governmental function. In that case this court said, 225 Iowa 442, l.c. 458, 280 N.W. 608, l.c. 616:
"An act of misfeasance is a positive wrong, and every employee, whether employed by a private person or a municipal corporation, owes a duty not to injure another by a negligent act of commission. It is the breach of this duty which the law imposes on all men that is involved, and the general obligation to injure no man by an act of misfeasance is neither increased nor diminished by the fact that the negligent party is an employee of a municipal corporation."
The reason for the rule that an employee of a municipality is liable for his own acts of misfeasance, as distinguished from the acts of nonfeasance by the municipality itself, is well stated in Rowley v. Cedar Rapids, 203 Iowa 1245, 212 N.W. 158, 53 A.L.R. 375. In that case the city's employee was looking after the business of the city, and plaintiff was struck and injured *Page 1185 by an automobile operated under the personal direction of such employee. Both the city and the employee filed demurrers to plaintiff's petition. Both demurrers were sustained. The ruling of the lower court in sustaining the employee's demurrer was reversed. In that case this court said, 203 Iowa 1245, l.c. 1250,212 N.W. 158, 160, 53 A.L.R. 375:
"If it should be conceded, as the demurrer assumed, that Kennedy was engaged in the performance of a governmental duty * * *, still we think the demurrer on his behalf was improperly sustained.
"We have held, it is true, that an agent who performs a governmental function on behalf of a county is no more responsible for negligence in so doing than the corporation for which he acts. Snethen v. Harrison County, 172 Iowa 81,152 N.W. 12; Gibson v. Sioux County, 183 Iowa 1006, 168 N.W. 80. In these cases, negligence was charged on the part of the members of the board of supervisors in respect to permitting various defective conditions to exist in a public highway. In great measure, the acts charged as negligence were acts of nonfeasance, and they all related to alleged negligence in respect to the condition of the highway and the things done or omitted in preparing it for use. In Wood v. Boone County, 153 Iowa 92, 133 N.W. 377, 39 L.R.A. (N.S.) 168, Ann. Cas. 1913d 1070, where it was said that it would be an anomalous doctrine that would exempt a corporation itself from liability for the doing of a lawful act in a negligent manner, on the ground of its compulsory agency in behalf of the public welfare, and at the same time affix liability upon the agent for precisely the same act, done under express authority, the act complained of was one of nonfeasance, — the failure to furnish relief to a pauper. We recognized arguendo that, if the agent undertook to furnish relief, he might be personally liable for a negligent performance, although the county would not. We think that these cases and the doctrine there announced have no application to the facts pleaded here. Aside from the distinction between a county and a city, which would perhaps not be controlling where the officer of a city was engaged in the performance of a governmental duty, there is a well recognized distinction between acts of nonfeasance and those of misfeasance, and also, we think, so far as the personal liability of the agent is concerned, between an act *Page 1186 of negligence which is committed while the agent or officer is engaged in the performance of an official duty, but which is otherwise unrelated to such duty, and the negligent performance of the duty itself. Could it be said that a member of the board of supervisors, when traveling in performance of his official duty to repair a highway, could escape personal liability for an injury negligently inflicted upon one whom he met on the way, because of the official character of his errand, although he would not be liable for a negligent performance of his mission to repair the highway? In Goold v. Saunders, 196 Iowa 380,194 N.W. 227, we said:
"`A public official may be guilty of negligence in the performance of official duties for which his official character gives him no immunity.'"
The precise question before us here was so recently passed upon by us in the case of Montanick v. McMillin, 225 Iowa 442,280 N.W. 608, that we are impelled to hold that our ruling herein is controlled by our ruling in that. As the reasons for this rule have been so exhaustively discussed and considered in the able opinion therein written by Justice Mitchell, we deem it unnecessary to pursue the discussion further here; but for a further discussion of this question, we make that case a part hereof by reference. We are not inclined to change the rule laid down therein, and adhere thereto.
For these reasons we are constrained to hold that the judgment of the lower court in sustaining the demurrer of defendant Kelly to plaintiff's petition must be and is hereby reversed. As hereinabove indicated, the ruling of the lower court sustaining the demurrers of the defendants, Keokuk County and its Board of Supervisors, is hereby affirmed. The judgment of the lower court is therefore hereby affirmed in part and reversed in part. — Affirmed in part, reversed in part.
SAGER, C.J., and DONEGAN, MITCHELL, STIGER, MILLER, and RICHARDS, JJ., concur.
ANDERSON, J., dissents.
*Page 1187HAMILTON, J., takes no part.