Gillmor v. Salt Lake City, No. 1820

No. 1820 | Utah | Mar 25, 1907

PEICK, J.

This is an action for damages for a trespass upon and injury to property alleged to have been committed by three police officers of the defendant city jointly with other persons. The plaintiff, in substance, alleges in his complaint that the defendant is a municipal corporation; that the plaintiff is tbe owner of certain real estate, describing it; that'a body of men under the direction and control of three police officers of the defendant city, naming them, were engaged in searching the Jordan river for a dead body supposed to be therein, and in doing so entered upon the inclosure of plaintiff on the land mentioned and trampled and cut up the land within the inclosure, greatly damaging the lucerne growing thereon, and injured and partially destroyed a large number of growing trees, and left a number of unexploded charges of dynamite or other explosives so near to the dam owned and used by plaintiff in said river that it is unsafe to go upon or near said dam for the purpose of making necessary repairs thereto, and therefore plaintiff will have to construct a new dam; that in making the search for said dead body it was not necessary for the men -to trample down and injure plaintiff’s crops, but such search could have been made along and near the bank of the river without injury to> plaintiff; that plaintiff presented his claim for damages to the city council, and the same had not been allowed. There are some other allegations, but they are not material for the purposes of this decision. The plaintiff, upon substantially the foregoing allegations, demanded judgment for the sum of $614, his dam-¿ges, and for costs. To this complaint the defendant demurred, upon the sole ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and, the plaintiff electing to stand on his complaint, the court dismissed the action, from which judgment of dismissal this appeal is prosecuted, and error is predicated on the action of the court sustaining the demurrer and in entering judgment of dismissal.

No question is presented in respect to the sufficiency of the complaint, if the defendant city can be held liable as a matter of law for the acts of the police officers in doing what it is alleged was done by them in searching the river for the dead body supposed to be therein. It was frankly conceded by counsel for plaintiff on the hearing, and is practically so conceded in his brief, that if the acts were done in the discharge of a governmental function by the city, then it would not be liable, because tbe doctrine of respondeat superior would not apply. Counsel, however, contends that the act of searching the stream for the supposed dead body was not an act that falls within any governmental duty of the city, but insists that it was its duty to have the stream searched, or,- at least, that it might properly direct it to be done through its police officers. The law in respect to the liability of municipal corporations in discharging governmental or public duties is well and tersely stated in 20 A. & E. Enc. Law, at pages 1193 and 1194, in the following language:

“The rule is general that a municipal corporation is not liable for alleged tortious injuries to the persons or property of individuals, when engaged in the performance of public or governmental functions or duties. So far as municipal corporations exercise powers conferred on them for purposes essentially public, they stand as does sovereignty whose agents they are, and are not liable to be sued for any act or omission occurring while in the exercise of such powers, unless by some statute the right of action be' given. And, where the particular enterprise is purely a matter of public service for the general and common good, it makes no difference whether it is mandatory, or whether only permitted and voluntarily undertaken. A municipal corporation, therefore, is not liable for negligence in the course of work undertaken purely for the public benefit and advantage, and not for the benefit of the corporation. Nor is liability incurred by a city in the exercise of its police power in measures adopted for the general health, comfort, and convenience of the public.”

Applying the facts as stated in the complaint to> the law as stated in the foregoing quotation, it seems manifest that the city, in any event, was engaged in the discharge of a public duty as agent of the sovereign state, its creator. This would be so whether the act of searching the stream for the dead body supposed to be therein was for the purpose of tracing crime, if such was the purpose, or for the purpose of maintaining or safeguarding the public health and welfare. In either event, neither the act nor the purpose thereof was for the benefit of the city as a corporation, but was for the public good generally. The city, therefore, in the absence of a special statute, cannot be held responsible for the acts of police officers, and certainly not for strangers. Nor does the allegation that the stream could have been searched without committing the alleged trespass make the city liable, and certainly not under the allegations of the complaint. If the officers or persons, when they acted, did so willfully or maliciously, or even negligently, action should be directed against them for redress of the wrongs, and not against the city, which they did not represent, except as it carried into effect the duties devolving upon the sovereign state which were delegated to the city as the state’s agent.

It could serve no useful purpose to either discuss or cite the numerous authorities upon this subject, since the allegations of the complaint, taken as a whole, leave no room for doubt that no cause of action is stated against the city in view of the well-settled' principles of law applicable to> the facts contained therein. The court therefore did not err in sustaining the demurrer and in entering a judgment dismissing the action.

The judgment is affirmed, with costs.

MeCAETY, C. J., and STEAUP, J., concur.