Kerns v. Couch

The first assignment of error is based upon the action of the trial court in overruling defendant’s objection to the introduction of any testimony by plaintiff. The question thus presented is whether this action can be maintained against the county. It is a well-recognized principle that in the absence of a statute, either expressly or impliedly authorizing it, an action based upon tort cannot be prosecuted against a county.

It is a well-recognized rule in this state that a plaintiff may waive a tort and declare upon an implied contract. Moreover, the rule has been announced by this court that…