75 P.2d 977 | Or. | 1938
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *7
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *8 In Banc. The principal question for decision in this case, raised by motion for nonsuit at the trial, is upon *9 the construction to be given to the language of a statute of this state, governing suits and actions against cities and other public corporations. The statute is § 5-502, Oregon Code 1930.
The plaintiff recovered a judgment against the city of Union for injuries sustained by him on September 24, 1936, as the result of the negligence of the city in failing to keep one of its streets in a reasonably safe condition for ordinary travel. He was injured, according to his claim, when the horse which he was riding fell into an unguarded hole in a wooden culvert in one of the city streets. The city contends on this appeal, as it did in the circuit court, that whatever may have been its liability formerly in such a case, today, under the statute as it now reads, it is immune to a private action for an injury caused by a mere omission of duty on its part as contrasted with a private action for an injury caused by its positive affirmative action. Its position rests upon the ground that, whereas, before the year 1929, the statute in question provided that an action could be maintained against certain public corporations, including cities, "for an injury to the rights of the plaintiff, arising from some act or omission" of such public corporations, it now provides that an action can be maintained only for an injury "arising from some act or commission" of such public corporations; and that the substitution of the word "commission" for "omission" amounts to a legislative abolishment of actions based upon a mere neglect to perform a duty such as constitutes the gravamen of the plaintiff's claim in the instant case.
The importance of the question and the far-reaching effects of its decision have caused us to give the case the most careful consideration. *10
The statute under consideration takes its origin from territorial days. As amended in 1862, and before this court was called upon to construe it, it read as follows:
"An action may be maintained against a county, or other of the public corporations mentioned or described in § 346, either upon a contract made by such county or other public corporation in its corporate character and within the scope of its authority, or for an injury to the rights of the plaintiff arising from some act or omission of such county or other public corporation." General Laws of Oregon, 1843-1872, as compiled and annotated by Matthew P. Deady and Lafayette Lane.
In 1887, the statute was amended so as to limit actions against counties to those on contract, and as so amended it read:
"An action may be maintained against any of the organized counties of this state upon a contract made by such county in its corporate character, and within the scope of its authority, and not otherwise. And an action may be maintained against any of the other public corporations in this state mentioned in § 346, in its corporate character and within the scope of its authority or for an injury to the rights of the plaintiff arising from some act or omission of such other public corporation." L. 1887, p. 45, Hill's Ann. Laws. § 350.
The public corporations mentioned in § 346 are, besides counties, incorporated towns, school districts, or other public corporations of like character.
The statute so remained until 1929, when the word "commission" in its latter part was substituted for "omission". It now reads:
"A suit or action may be maintained against any of the organized counties of this state and against the state of Oregonby and through and in the name of its state highway commission upon a contract made by *11 such county in its corporate character, or made by suchcommission after the passage of this act and its approval by thegovernor and within the scope of its authority, and not otherwise, and an action or suit may be maintained against any of the other public corporations in this state mentioned in § 5-501 (Oregon Code) in its corporate character, and within the scope of its authority or for an injury to the rights of the plaintiff arising from some act or commission of such other public corporation * * *." L. 1929, Ch. 227, § 5-502, Oregon Code 1930.
The italics indicate the changes made by the amendment.
In view of the decisions of this court construing the section after the amendment of 1887, the reason for the enactment of the law, at least as far as the liability of municipal corporations proper, such as cities, are concerned, must be a matter of speculation. For this court has many times declared, and today it is not open to question, that this statute does not include within its purview an injury arising from some public or governmental act of a public corporation, but only gives a remedy when the corporation is liable in its corporate capacity as distinguished from its political or governmental capacity, as an arm of the state. See Antin v. Union High School District No.2,
Thus, it may safely be said that, at least with respect to activities of the character mentioned, the statute neither created a liability on the part of the municipal corporation nor gave any remedy which did not already exist and which did not continue to exist independently of statute.
As far as quasi corporations, such as counties and school districts, are concerned, the reason for legislative action is apparent, because such organizations, the courts have held quite uniformly, are not liable in a civil action for damages for neglect of duty unless such liability be expressly made so by statute: Rankin v. Buckman,
But with regard to liability of cities to an action for injury caused by their failure to keep their streets *13
in repair, the case again is different. It is familiar law that municipal corporations act in a dual capacity and their functions are two-fold: the one, political or governmental; the other, private, proprietary, or corporate; that when they act in the former capacity they are not liable for the acts and omissions of their officers, agents, and servants; but when they act in the latter capacity, they are so liable: Etter v. City of Eugene,
"Though there is a conflict of judicial utterance as to the common-law liability of a city for a failure to keep a street in repair, the weight of authority supports *14
the principle that when a charter invests a municipal corporation with exclusive control over the streets within its limits, and authorizes it to employ the means necessary to improve and maintain such highways, a duty to the public arises by implication of law to keep the streets that have been opened for travel in a reasonably safe condition; and for any injury that may result from a failure to discharge such obligation the city, without any statutory provision to that effect, must respond in damages. [Citing authorities]. Our statute re-enacts this rule of the common law, and authorizes the maintenance of an action against any city in its corporate capacity for an injury to the rights of a party arising from some act or omission of a municipality. § 360, B. C. Comp. Wagner v. Portland,
Now, while the statute under consideration has been invoked by this court when passing on the question of a city's liability on account of defective streets, just as it has been held to apply in those cases where strictly corporate capacities and functions were involved, yet, as tending to fortify the conclusion stated in Batdorff v. Oregon City, supra, and also later in Humphryv. City of Portland, supra, that the former is a common law liability, it is significant that there are numerous cases in which this court has sustained the right to maintain actions against cities for injuries caused by their failure to keep their streets in a suitable condition of repair and in which the statute has not been *15
mentioned, nor in any way looked to as the foundation of the right. See Mattson v. City of Astoria,
Speaking of this doctrine, Judge Dillon says that it "has seemed so reasonable that it is believed never to have been legislatively repudiated, and it is certain that it has been almost universally adopted. It has, in fact, become as above shown, part of the settled jurisprudence of the country.": 4 Dillon, Mun. Corp. (5th Ed.) 3009, § 1715.
The amendatory statute must be construed in the light of the law relating to the liability of municipal corporations for their torts as it has been expounded and declared by this court. Some phases of this law are in a confused state in this as in other jurisdictions, and it is impossible to reconcile some decisions with others; but the following propositions, we think, are established by the course of judicial decision in this state: First, that without a statute authorizing it, no action will lie against a quasi municipal corporation for the negligent acts of its officers, agents, or employees; second, that municipal corporations proper are liable at common law to a private action for such negligent acts when they are incident to the performance of some private, corporate, or proprietary function; *16 third, that municipal corporations proper, such as cities, are so liable at common law to a private action for injuries caused by their failure to perform the duty imposed on them of keeping the streets and other public ways in a reasonably safe condition for the ordinary modes of travel when they are authorized to employ the means necessary to improve and maintain such highways; and, fourth, that the statute under consideration has no application to a case where the corporation is exercising political or governmental functions as an agency of the state, but does apply to the acts of the city in its corporate capacity, including the municipal or ministerial duty of repairing its streets.
In view of these principles, the court should not, as counsel for the defendant urge us to do, construe the amendatory statute strictly. We are referred to such decisions as McFerrenv. Umatilla County,
"It is conceded, and it has become the settled law now, wherever a city or town is required, or power is conferred, by its charter, to repair and keep in good condition its streets and sidewalks, the duty arises, and the city is liable to any one sustaining damages by a failure to perform the duty, unless the city is exempted from responsibility, and we think it may be safely added, that liability should be clearly negatived, or the *17 exemption clearly stated. — 2 Dillon, Mun. Corp. §§ 1017, 1018, 1023, and authorities cited to the text."
In our search for the intention of the legislature, it must be remembered that the statute is not confined in its operation to actions for injuries caused by negligence in connection with the city's duty to maintain and repair its streets. As we have seen, it relates to any of the strictly corporate activities of the municipality. The consequence of adopting the construction urged upon us by the city would be not merely the exemption of cities from liability in this and similar cases but in all those other cases where they act in a strictly private and proprietary capacity, so that hereafter cities will be immune to private actions for negligent omissions of duty in the maintenance and operation of municipal gas, water, and lighting systems, docks, street railways, and the like. Grave questions would arise as to the liability of cities to their employees under the employer's liability act. See Asher v. City of Portland,
As far as school districts and other quasi municipal corporations are concerned, a different question would be presented, in view of their immunity to private action in the absence of statute authorizing such actions.
We hold that the legislature has not, by the substitution of the word "commissions" for "omissions" in the statute, clearly manifested an intention to deprive the individual of the right, always heretofore recognized in this state, to maintain an action against a city for injury caused by the city's negligent failure *18 of duty in regard to the maintenance and repair of its streets; but rather that the effect of the amendment is simply to leave the subject as it was at common law. That would certainly have been the result if all reference to cities had been eliminated from the statute. It would have been concluded that the legislature was merely getting rid of a superfluous and unnecessary law. We think that had the legislature intended any such revolutionary change in the law of municipal corporations as the defendant here claims, they would have said so in plain language, or, at any rate, that they have not so clearly expressed such intention as to warrant us in placing that construction upon the language of the amendatory act.
This conclusion is supported to some extent by Umphlette v.City of Silverton, supra; Wheeler v. City of St. Helens,
It also finds support in the decision in Grant County v. LakeCounty,
Furthermore, whereas, prior to the amendment of 1887, the right to maintain an action on a contract against a city was expressly given by the statute, by that amendment such right was, in terms, eliminated. If the contention of the city in this case were to be carried to its logical conclusion, it would follow that no action on contract could be maintained against any of the cities of this state — a position which we assume no one would have the hardihood to take.
The city of Union is empowered by its charter to open, improve, and construct streets, side and cross walks, and public ways, and to establish and alter the grades of any streets. It is also by that instrument authorized to employ the means necessary to discharge those duties. It is, therefore, under the doctrine of this court, which we have set forth, liable to an action of this character and no error was committed by the circuit court in denying the motion for a nonsuit.
The defendant further contends that it was entitled to a judgment of involuntary nonsuit because the plaintiff, under the evidence, was guilty of contributory negligence as a matter of law. No such ground was specified in the motion addressed to the circuit court. The rule is well settled that when a motion for nonsuit *20
is denied the grounds stated in the motion are conclusive on the moving party, and he cannot raise, for the first time on appeal, a ground not stated in the court below: Hunt v. Ring,
The defendant's brief contains an assignment of error, reading as follows:
"The trial court improperly excluded evidence of plaintiff's habits of riding rapidly and carelessly about the streets of Union and of evidence of the manner in which a horse would have stumbled to be found in the position disclosed by plaintiff's witness, Sherman."
This assignment, like several others in the brief, does not comply with rule ten of the Rules of the Supreme Court,
If either party had the right to complain of the trial court's rulings on the admission of expert or opinion evidence as to the manner in which a horse would fall under certain circumstances, it was the plaintiff, not the defendant. As we have said, the plaintiff claimed that the horse which he was riding fell into an unguarded hole in a wooden culvert in the city street. Over the plaintiff's objection, a great deal of testimony *21 was admitted, designed to show that if the horse had stepped into the hole he would not have fallen in the manner that some of the testimony indicated that he did fall. One witness testified that, "A horse is like a human or any other animal, if they fall down while going at a good rate of speed, they will naturally go in the same direction" — a statement which indicates that the opinions elicited were concerning facts of common knowledge and not the subject of expert testimony. However that may be, the opinions of a number of witnesses versed in the habits and idiosyncrasies of falling horses were received, but when it was sought to have these witnesses, who did not see the accident, advise the jury as to how it probably occurred, the judge called a halt upon this proposed invasion of the province of the jury. In this he was so obviously right that the question is not even debatable.
The only other assignment of error which calls for discussion relates to the action of the trial court in excluding from the evidence exhibits 1 and 2, consisting of a letter written by one of the attorneys for the plaintiff to the city recorder of the city of Union, under date of December 15, 1936, and a statement of the plaintiff's claims inclosed therewith. The letter reads as follows:
"As attorney for Mr. A.J. Blue I am filing with you his claim against the city of Union for damages resulting from injuries sustained by him when his horse fell through a hole in a culvert or bridge. I ask that you file the claim with the City council and call the same to its attention. If the City settles and pays the amount claimed it will be accepted. If not the claim as presented shall not be considered as binding on Mr. Blue as to the amount of damages he actually suffered. As regards the claim of $42.00 owing by Blue to Dr. Lee and the claim of $5.84 for medicines I agree that the *22 city may pay the same at once without prejudice as to any defense the city may think or be advised it has to the claim of Mr. Blue, nor will the payment of the same at this time be construed as a liability on the part of the City. Both of said parties have waited for some time for their pay and I think should be paid now, and for that reason I make the above statement. This is merely my own personal view of the matter and suggested because I think it reasonable."
The accompanying claim reads:
"Union, Oregon, December 15, 1936
The City of Union to A.J. Blue Dr. To injuries sustained as a result of being thrown from his horse when the horse fell through a defective bridge or culvert on one of the streets within the corporate limits of the
City of Union, on September 24, 1936 ___________ $800.00 To suffering resulting from said injuries ______ 500.00 Loss of time ___________________________________ 225.00 Medical service by Dr. Geo. F. Lee _____________ 42.00 Medicines at Union Drug Company ________________ 5.84 _________ Total $1572.84"
The question is whether these documents constitute an offer of compromise. The defendant argues that they are to be treated as an admission of the extent of plaintiff's damages; that the plaintiff has merely stated the amount of his minimum demand with a threat to sue for more, if that amount should not be paid, and that, therefore, the rule which renders offers of compromise inadmissible has no application. It is argued that, as the plaintiff sued for more than $12,000, and recovered a judgment for $5,297.84, the exclusion of the writings, which show a previous appraisal by him of his damages at a much smaller sum, was prejudicial error. *23
In Dalk v. Lachmund,
"As is seen from the definitions of the word `compromise', one of its elements is a concession. The concession is prompted by a desire for peace and avoidance of litigation. Influenced by such promptings, the party may forego rights which he could readily establish in litigation, but he surrenders them for the sake of peace. Thus, since an offer of compromise may involve the surrender or waiver of rights rather than an insistence upon them, it is unlikely to be a reliable source of admissions. Due to this circumstance, as well as to a desire to encourage compromises, the law regards offers of compromise as privileged communications, and renders them inadmissible."
Whether an offer to accept a named sum in payment of a claim is an admission that that sum is the extent of one's damage, or an offer to buy one's peace, or to compromise for the purpose of averting litigation, is primarily a question of fact to be determined by the trial court. It is a question of intention: Langdon v. Ahrends,
One of the tests, as we have seen, in resolving this question is whether the claimant is offering to take less than his due: Swenson v. Kleinschmidt,
Section 7-202, Oregon Code, provides:
"An offer of compromise is not an admission that anything is due; but admissions of particular facts, made in negotiation for compromise, may be proved unless otherwise especially agreed at the time."
The items in the claim of $42 for medical services furnished by Dr. Lee, and of $5.84 for medicine, taken in connection with the statements in the letter regarding these items, must be deemed admissions of particular facts, but as admissions their exclusion from evidence was wholly immaterial, because in the trial of the case the plaintiff claimed no larger sums for medical services and medicine.
We find no error in the record and it results that the judgment must be affirmed.
ROSSMAN and KELLY, JJ., not sitting.
Dissenting Opinion
Unless prohibited by some provision of the federal or state constitution, it is within the power of the legislature to provide that a city shall or shall not be liable for its failure to perform a municipal duty. It cannot, of course, destroy vested rights which would be a taking of property without compensation, nor can it impair the obligation of contracts. These are prohibited both by the federal and state constitutions. But no person has a vested right to a remedy for an injury which may or may not happen in the future because of some future tort. The law creating or excluding liability for torts, which may or may not arise in the future, is subject to change by the legislature. *25
See the prevailing opinion by Mr. Justice STRAHAN in Templetonv. Linn County,
Now, the change in the statute by substituting the word "commission" for "omission" was evidently for some purpose or else it was a clerical error upon the part of the legislature. Whether it was wise to make such change was a question for the legislature, not the courts, and, if it was a clerical error, then, unless there is some ambiguity or absurdity in the amendatory act, this court would not be warranted to give to the amendatory act any different meaning from what its language imports. The power of courts to correct clerical errors in a statute can be exercised only when the error is so manifest from an inspection of the act as to preclude all manner of doubt and when the correction will relieve the sense of the statute from an actual absurdity and carry out the clear purpose of the legislature: Black, Interp. of Laws (2d Ed.), sec. 58; Endlich, Interp. of Stat., sec. 407.
It is a familiar rule, which has often been laid down by this court, that, where words in a statute are susceptible of two constructions, of which one will lead to an absurdity, the other not, the latter is to be adopted. To hold, therefore, that, when the legislature, by the amendatory act, substituted the word "commission" *26 for "omission", it intended to make no change in the statute and that cities should thereafter, as formerly, be liable for their omissions would defeat the very purpose which the legislature had in mind in amending the former statute since the words "omission" and "commission" mean two entirely different things and presumably were used by the legislature with the intention that they should be given their popular signification and not be used interchangeably as if meaning one and the same thing. To give to the amended statute that construction would lead to an absurdity.
Hence, whether the remedy of an injured person to sue a city for a failure to keep its streets in repair was a common-law remedy, as some of our decisions have held, or was a remedy created by statute, in either event, the legislature had power to limit or modify the liability of a city in whatever manner it saw fit to do. As so amended, the statute is controlling and should be given its proper effect.
For these reasons, I cannot concur in the majority opinion. *27
