36 P. 916 | Ariz. | 1894
This was an action by appellant to recover damages for personal injuries sustained by him. He based his claim for relief upon the facts that the appellee is
Section 7 of article 18 of the charter of the city of Phoenix provides as follows: “Sec. 7. That said corporation shall not be liable to any one, or for any loss or injury to person or property growing out of or caused by the malfeasance, misfeasance, or neglect of duty of any officer or other authorities of said city or for any injury or damages happening to such, person or property on account of the condition' of any zanja-, sewer, cesspool, street, sidewalk, or public ground therein, but this does not exonerate any officer of said city or any other person from such liability when such casualty or accident is caused by willful neglect of duty enforced upon such officer or person by law or by gross negligence or willful misconduct of any such officer or person in any other respect.” It seems to us that any fair construction of this section inhibits such form of action against the city. Appellant in his
Plymouth, Indiana, had an ordinance prohibiting the firing of gunpowder or any other substance, except on occasions of public rejoicing, when the mayor granted permission to fire guns, cannons, and other things in which gunpowder was used. On the 4th of July, 1885, the mayor granted permission to fire gunpowder in an anvil on lot in said city; and when it was fired it blew gravel and stones against one of Wheeler’s plate-glass windows and broke tlioin. The supreme court of Indiana, in Wheeler v. City of Plymouth, 116 Ind. 158, 18 N. E. 532, in passing upon the question of the liability of the city says: “A city which has an ordinance prohibiting the firing of gunpowder, but allowing the mayor to license such firing on certain occasions, is not liable for the damages occasioned by the negligence of the licensees, there being nothing to show that the authorized act was necessarily dangerous.” It is also decided in the same case that “there is no actionable breach of corporate duty in failmg to enact a proper ordinance, or in failing to enforce one that has been enacted; and consequently this action cannot be maintained upon the theory that there was a proper ordinance, nor upon the theory that the ordinance was not enforced.” Under this theory it seems clear that the action at bar could : tot be maintained if the ordinance was not enforced. Then, upon what system of reasoning could it be maintained because it was suspended for a day ? For failmg in governmental action, municipal corporations are responsible only to their corporators or the power creating them. Cooley on Torts, 620. It shows no ground of action when one complains that he has suffered damages because the operation of an ordinance whiel prevents the explosion of fireworks within the city has been temporarily suspended. Cooley on Torts, 626.
The firing of the Chinese bombs, in the case at bar, was not the act of the city, nor did the city have any agency in said act. A licensee does not thereby become the agent of a municipal corporation. Lincoln v. City of Boston, supra; Fowle v. Alexandria, 3 Pet. 398. Chief Justice Marshall, in Fowle v. Alexandria, says: “That corporations are bound by their contracts is admitted. That money corporations, or those carrying on business for themselves, are liable for torts, is well settled. But that a legislative corporation, established as a part of the government of the country, is liable for losses sustained by a nonfeasance—by an omission of the corporate body to observe a law of its own, in which no penalty is provided—is a principle for which we can find no precedent.”
Rivers v. Common Council, 65 Ga. 376, 38 Am. Rep. 787, is a well-considered case, and is very similar to the case at bar. The plaintiff, a minor child, while walking upon one of the defendant’s streets, was seriously gored by a cow which was running at large in the streets of said city. She sued the corporation for damages alleged to be sustained by reason of this misfortune. It will be noticed, by reference to the facts in this case, that the allegations of the declaration are quite similar to the complaint in the case before us. In 1878 the city had an ordinance against cattle running at large. This ordinance was suspended at the time of the injury to the child. Mr. Justice Crawford says: “The adoption of an ordinance in reference to allowing cattle to run at large in the city is one which is wholly legislative and therefore discretionary. It is not liable in damages for neglecting, omitting, or refusing to notice the subject, or having noticed it, and adopted an ordinance concerning it, then to repeal or suspend it.” The same reasoning would undoubtedly apply to an ordinance against the firing of bombs, etc. In the Georgia ease it was argued that, so long as a city fails to legislate, it
Appellant, in his brief, relier; upon the cases of Cohen v. Mayor etc., 113 N. Y. 532, 10 Am. St. Rep. 506, 21 N. E. 700; Speir v. City of Brooklyn, 139 N. Y. 6, 36 Am. St. Rep. 664, 34 N. E. 727. In Cohen v. Mayor etc., the facts were that the city, by a permit, allowed a grocer to keep a wagon in front of his store when not in use. On a certain morning Cohen was walking along the street in front of the grocer’s store. At the same time a wagon loaded with ice was passing in one direction, and one loaded with coal was passing in the other. The grocer’s wagon, without any horse attached, was standing in front of his store. The thills were tied up in a perpendicular position with a string. The length of the wagon was parallel with the course of the street. The ice-wagon, probably in attempting to avoid tb. coal-wagon, caught against the wheel of the grocer’s wagon, turned it around, and loosened the thills, so that they fell and struck Cohen on the head, injuring him so that he died the next day. The city was held liable. The court held that the permission was not authorized by law, and that the owner of the wagon acquired ho right by virtue of the license to store his wagon in the street, and in doing so he was - I early guilty of maintaining a nuisance. The defendant was ' !so guilty because it assumed to authorize the erection and cos itinuanee of a nuisance. The
Speir v. City of Brooklyn, supra, was a case where fireworks were allowed by the mayor, under an ordinance, at the junction of two narrow streets in the city of Brooklyn, and plaintiff’s property was destroyed, and the city was held liable; the court having held that the circumstances of that particular case made the same a public nuisance, and the plaintiff recovered under that theory. Such displays, the court seemed to think, should be under the supervision of the municipal authorities, and it was probably entirely proper for the court to rule as it did in this particular case. It was at the junction of two narrow streets of a large city, completely built upon, and where any misadventure in managing the discharge would be likely to result in injuries to persons or property. The action in the casé at bar is not upon the theory that the city was guilty of unlawfully erecting and maintaining a nuisance. A city is liable for maintaining a nuisance, unless expressly authorized by law to do so. It was on this theory a recovery was had in the New York cases. It may have been an error of judgment in the officers of the city in granting the permit or suspending the ordinance on the particular street on the day alleged, but cities are not responsible for errors of judgment of their officers in the enforcing of their laws. We must conclude that, both from the reading of the charter of the city and the weight of authority, the chief justice was correct in sustaining the demurrer, and the judgment is affirmed.
Bouse, J., and Sloan, J., concur.