Rose Baldwin, as plaintiff, sued the city of Oklahoma City, as defendant, for damages, and alleged that one of the trucks of the health department of the city negligently hit the car of the plaintiff and damaged it in the sum of $250; and that she was further damaged personally by the breaking of her arm and wrist which compelled her to pay in nurses' bills, doctor's *Page 290 fees, and hospital expenses the sum of $500; and that she suffered great pain on account of such injuries and was damaged thereby in the sum of $2,500. The jury returned a verdict in her favor, allowing her $92 for damage to the car, $500 for suffering, and $2,000 for impaired earning capacity and permanent disability.
The first five assignments of error may be considered together, because they raise the same fundamental proposition of law, which may be stated as follows:
"Is a city liable for the acts of a driver of a garbage wagon in the employ of said municipality while performing his duties as such garbage collector, for the reason that the collection of garbage is an act of the city in its governmental capacity as distinguished from its corporate capacity?"
It is fundamental that the acts of a municipality are divided into two divisions, one governmental and the other corporate. If the acts of the agents of the municipality are performed while acting in a governmental capacity for said city, the city is not liable for the negligent acts of its agents, but the city is liable for such acts of its officers or agents when acting in a corporate capacity.
The contention is made that, because the city charged a fee for the removal of garbage, it was acting in its corporate capacity. The facts in this case show that the city did make a charge for such services and that for the year 1925-26 a small profit was made in that department. The previous years show that quite a deficit existed by reason of the operation of this department. We do not think the fact that a city makes a charge for the removal of garbage and rubbish, covering the cost of such removal, necessarily makes such removal a nongovermental function so as to render it liable for the negligence of a truck driver while engaged in such removal.
A number of the states in the Union have announced the rule that in the collection and disposition of garbage the city acts for the public health and discharges a governmental function. In this regard it is an agent or arm of the commonwealth, and for that reason absolved from liability for the negligence of its employees.
In the case of Janes v. City of Charlotte. 112 S.E. 423, the Supreme Court of North Carolina held that the removal of garbage was a governmental function.
In the case of Manning v. City of Pasadena, 209 P. 253, the Supreme Court of California held:
"A city in enacting an ordinance concerning the disposition of garbage and in collecting garbage and disposing of it in a sanitary method was acting within its police powers, and the fact that it sold the garbage after it had been collected at its incinerator, thereby recouping some of the expense of collecting, did not convert the governmental function of collecting into a proprietary function so as to render it liable for the negligence of its garbage collectors."
The Supreme Court of Kentucky in the case of City of Louisville v. Hehemann, 171 S.W. 165, announced the rule as follows:
"In the collection and disposition of garbage undoubtedly the city acts for the public health, and discharges a governmental function. In this regard it is an agent or arm of the commonwealth, and for that reason is absolved from liability for the negligence of its employees."
The Supreme Court of New Jersey in the case of Condict v. Jersey City, 46 N.J.L. 157, said:
"The removal of ashes and garbage placed by the inhabitants in boxes and barrels upon the sidewalks is part of the duties of this board in their supervision over and care for the cleanliness of the streets. * * * To impose upon the corporation liability for the negligence of such employees would indirectly fix upon the corporation a liability from which it is by law, on consideration of public policy, exempted."
To the same effect are the following cases: City of Tuscaloosa v. Fitts (Ala.) 96 So. 771: Jones v. City of Phoenix (Ariz.) 239 P. 1030; Love v. City of Atlanta, 95 Ga. 129; Scibilia v. City of Philadelphia (Pa.) 124 A. 273; Bruhnke v. City of LaCrosse (Wis.) 144 N.W. 1100.
Numerous cases have been called to our attention which hold that the operation of garbage collectors is a governmental function of the municipality. Our attention has not been called to a single case holding that the operation of garbage collectors is a function of a city in its corporate capacity.
For recovery, the plaintiff relies primarily upon the case of City of Shawnee v. Roush, 101 Okla. 60, 223 P. 355. In that case Shawnee operated a municipal hospital. The plaintiff paid the customary charges the same as she would have in a private institution. Under these facts it was held that the city was liable for the negligence of a nurse. So far as the plaintiff was concerned, in that case, the hospital was run on the same basis as if it had been run by a private individual.
The plaintiff also relies upon the case of Oklahoma City v. Foster, 118 Okla. 120, 247 P. 80. This case held that the city *Page 291 has two types of functions, the one governmental and the other corporate. In the Foster Case the city operated a garage for the purpose of repairing motor vehicles used in connection with the police department. It was held, in so far as the repair and maintenance of its motor vehicles was concerned, the city was acting in its corporate or ministerial capacity.
As to whether or not a city in collecting its garbage is acting within its governmental or corporate capacity has never been determined by this court. However, it has been determined by numerous courts of last resort in other states and, in so far as our attention has been called, in every case, it has been held that in such capacity the city acts in its governmental and not its corporate capacity.
Since the adjudicated cases all hold that a city in the collection and disposition of garbage acts for the public health and discharges a governmental function, we are persuaded that we should follow that rule rather than to hold that in such cases the city is acting in its private, corporate capacity.
The judgment of the trial court is reversed, with directions to dismiss plaintiff's petition.
MASON, V. C. J., and PHELPS, LESTER, HUNT, and RILEY, JJ., concur. CLARK, J., dissents.
Dissenting Opinion Filed April 7, 1928.