*1 39 all Burns. From anything brakes had do the death of with exactly occurred appears in the record his death have sets though three equipped it did truck were with even independently operating brakes. support Since there is evidence a verdict no which would plaintiff, sustain proper favor court to motion for nonsuit.

MR. CHIEF JUSTICE HARRISON and MR. JUSTICE CASTLES, concur. BOTTOMLY,

MR. (dissenting). ADAIR JUSTICES and We dissent. Under the evidence in the before us the record alleged negligence alleged contributory of the defendant and the negligence properly lawfully of the decedent are questions jury the determination of the determination judge presiding denying jury the trial. opportunity considering deciding questions, these judge, trial opinion, in our committed reversible error this correct error the should be set aside and newa granted. trial KINGFISHER,

GRACE v. THE Appellant, Plaintiff Municipal FORSYTH, CITY OF and W.A. Corporation, DEVINE, Respondents. Defendants No. 9462. May 14, August 2,

Submitted 1957. Decided 1957. 314 (2d) Pac. 876. *2 Forsyth, City, Haynes, Lucas, Mr. F. F. Messrs. Leavitt Miles appellant. for Young, Fillner, County Atty., and H. G. Russell K.

Mr. Forsyth, respondent. argued orally. Fillner

Mr. James P. Lucas and Mr. MR. JUSTICE CASTLES: plead- dismissal on the of appeal from a

This City on by the defendant ings court as to entered district surviving on brought by the widow The action its motion. was damages surviving behalf, of children and on behalf her own re- Kingfisher, which death wrongful death Charles Devine, by July 4, 1953, A. W. shooting from a fatal on sulted City defendant defendants, policeman of the of the was for pleadings of dismissal on Forsyth. The only. City Forsyth defendant alleged: City things, That the among other complaint, The municipal and A. W. Devine was corporation, Forsyth City; policeman acting duly appointed, qualified Devine, defendant, July 1953, A. W. “That on or about City while policemaM the amd duty on while defendant attempting take employment scope his a-eting Kingfisher one Charles custody, wrongfully, negligently into justifiable and without cause force excessive and violence shot and wounded the Kingfisher said and from and result of said wound said Kingfisher Charles died on about or July 9, 1953. directly That the death of the deceased was proximately caused the wrongful negligent shooting wounding by defendant, Emphasis A. supplied. W. Devine.” That the shooting Kingfisher willful, wanton and malicious and in addition damages to actual plaintiff sought exemplary damages. defendant and the defendant Devine both filed de-

murrers which were overruled and By answers filed. its answer the defendant the allegations denied of the com- plaint shooting relative to the except said alleged admitted and July on or about 1953, the defendant Devine, while on as a while employ- ment, such, *3 as did arrest Kingfisher lawfully and took him custody; into that the City defendant denies all other alle- gations complaint. of the

As an City alleged affirmative defense the the existence of City municipal defendant as a corporation; that it was re- quired by chapter 136, Laws of and all amendatory acts thereto, seq., section 11-1801 organize, et to operate and maintain adequate police an protection force for the of the public health, safety morals, and in compliance and with the legislative during mentioned, mandate the times maintained operated and adequate police force; that during the time mentioned defendant duly Devine was the appointed, quali- policeman acting fied and City, the defendant acting within scope the course and his employment policeman as such in enforcement of the ordinances of the defendant City made and pursuant enacted Montana; reason thereof City, municipal the defendant corporation, in the enforcement regulations police acting of its agency as an of the and for an police not liable act of its officer committed employment in acting while and as course of City. officer said defendant alleged reply plaintiff, among things, In her other and duly appointed, quali- admitted that defendant was the Devine policeman fied and in City the enforce- the defendant City par- of the and ment ordinances enacted said defendant in ticularly to; enforce- the ordinances and that referred City, ment of the ordinances of said are involved in this which action, City acting solely the said for the benefit defendant inhabitants, and its in ex- advantage City itself, and its supervision streets, and sidewalks and clusive control of its public plaintiff alleged As the or- places. reply a further involved, enacted ad- dinance and that said ordinance was and ex- opted by exercising purpose sidewalks, its supervision and control over streets clusive public advantage its inhabitants places for the benefit and City itself; that at the time mentioned of defendant City, Devine, duly said defendant while on as a custody, into attempted take the said Charles alleged complaint, alleged in of of- upon the offense charged part in fensive conduct follows: upon That information and belief Conduct. “Offensive being, then did Forsyth, said chapter ordinance said section of said there violate then and unlawfully intention- willfully and and there then and did in a drunken and was found and intoxicated ally drunk become public places on the streets condition intoxicated Montana.” Forsyth, City of ‘‘ Offen- part as follows: involved reads city ordinance the limits of the Every person who shall within sive Conduct. * * * be found drunk or intoxicated Forsyth *4 * * * annoy and or whn shall public place any street or * * * sidewalks, shall or on the streets passersby frighten on misdemeanor, conviction thereof a guilty deemed be exceeding Hundred Dollars.’’ not One in a sum fined shall be reply time that at the alleged further It was lawfully upon the Kingfisher was tlie said Charles involved violating provisions the public places, streets and and was not any other ordinance quoted or the ordinance above City. a filed plaintiff’s reply filed,

After was the hear- Upon the judgment pleadings. written motion for on the ing thereof the court the motion sustained pleadings. a of dismissal on entered days King- shooting prior Two after the to the death a fisher, complaint in the court of filed conduct, Forsyth charging offensive with under the aforesaid ordinance. city is for question presented

The sole is liable whether city pleadings tortious acts of a under which allege that the within tortious acts were committed while employment enforcing the course and the laws and ordinances ? not,

We hold that it the district court 93-2810, brought under section The action was person, death of follows: “When the provides which wrongful neglect act or being minor, is caused representatives may maintain personal heirs or another, his person causing death, if damages against or action person responsible another person employed be who such against person. every such other conduct, then also preceding section, damages may- such under this and the action all the circumstances of case be given be as under just.” concedes counties appellant liability in the

municipalities are immune from enforcement of argues that in Montana, but the enforcement public ordinance for the benefit inhabitants private of a rule, home in the exercise of enforcements of only, large, immunity the state at from is of no concern to which *5 44 93-

liability section exist, above-quoted does not that the applicable. 2810 is

This court has frequently distinction bet made a ween governmental municipal corpora and proprietary powers aof 27, 55 rel., tion. 102 Mont. City Council, State ex Gebhardt v. 671; 586, (2d) Falls, Pac. 118 Mont. Felton v. of Great (2d) 229; 552, 169 234 City Butte, Pac. 72 Mont. Griffith v. 829; rel., 478, Pac. 276 Pac. Cook, State ex Brooks v. 84 Mont. 958; Phillips 352, (2d) Witter 111 109 Pac. County, v. Mont. 56. Council, supra, 102 Mont. at State ex rel. Gebhart v. 37, (2d) page 676, 55 said:

page Pac. this court here, controversy it is “Taking another view of the involved police power universally conceded ‘the source of the * * * municipal corporation state, is and the exercise the. governmental police powers municipal corporations is a 280, C.J., page Chapters 43 203. from 192 to inclu function’. (section 1921 2444 et Part 3 of Political sive of the Code chap These 88 entitled ‘General Police of the State’. seq.), are pro regulatory Political have to do with such ters of our Code ‘police power’ the comprehended what is termed visions They essentially governmental are state or functions. the state. is all that multitude of heading provision this made for Under relating public safety, public to the regulatory measures the affecting general public morals and all measures health, the regulations of a the inhabitants of the state. ‘Police welfare of city in its city enforced in the interests of not made and are but, public’. capacity, in the interest of the Trescott corporate 26 593." City Waterloo, C.C., F. v. mandatory it upon all 11-1801, makes 1947, section Montana to maintain an ade- State of

municipalities within force. quate duty upon municipality imposed having legislature force, adequate police follows that it

to maintain order, perform municipality preserve performing governmental municipality duty ing duty is whether any difference function. It does not make law a state such or being performed under a ordinance section Corporations, Jur., Municipal as such. See 38 Am. able we have been

page 317, So far as and cases cited therein. city police- universally held that a discover, the courts have agent acting as an enforcing city man in ordinances is damages responsible and that is therefore not for his conduct. *6 municipal corporation why reason

We see no basis law or in tort municipal ordinances enforcing should be liable when for in either enforcing when and not liable public interest. case it acts as arm of state and mandatory has made The state has vital interest and paramount to maintain and one of the functions of limits. law and order within its territorial laying land, in down rule throughout The courts officers, liability for the tort of exemption of a from A the rule. statement of the reasons for given various have Hagerman Seattle, Wash. v. Washington Court in 1110, particularly A.L.R. (2d) 1152, 1154, 110 694, 698, 66 Pac. that the doctrine has become “It now be said applicable: upon reason public policy, regardless of the fixed as matter any change rest, therein must is made to which the rule ’’ legislature. sought be from of the district court foregoing reasons For HARRISON and MR. JUSTICE JUSTICE MR. CHIEF ANGSTMAN, concur. BOTTOMLY:

MR. JUSTICE majority opinion, result reached in that but agree I with the all is said therein. ADAIR: MR. JUSTICE

I dissent.