Merritt v. McNally

14 Mont. 228 | Mont. | 1894

Lead Opinion

De Witt, J.

The ground on which the demurrers were sustained in the court below seems to be that, notwithstanding how great the damage may have been which the plaintiff suffered, the defendant McNally was not, by virtue of his official position or otherwise, to be held liable for these injuries. The defendant was a public officer, to wit, building inspector of the city of Helena, and in the pay of the city as such officer. The cause of action attempted to be alleged against him is that, as such officer, he acted so negligently—or perhaps it might better be said, so negligently failed to act—that the damage described in the complaint resulted. Whatever may have been the early rulings upon this point, it seems to be settled, in modern times, that where a public officer is exercising ministerial powers, and where he performs his duties negligently, or where he carelessly or willfully or knowingly fails to perform the duty at all, and from such failure on his part damage results to another, such person so damaged has a cause of action against such officer. (Throop on Public Officers, c. 29, § 724 et seq.; Raynsford v. Phelps, 43 Mich. 342; 38 Am. Rep. 189; Hines v. City of Lockport, 50 N. Y. 236; Amy v. Supervisors, 11 Wall. 136; Shearman & Redfield on Negligence, 324, and cases; Robinson v. Chamberlain, 34 N. Y. 389; Hover v. Barkhooff, 44 N. Y. 113, and review of cases; Adsit v. Brady, 4 Hill, 630; 40 Am. Dec. 305; Bennett v. Whitney, 94 N. Y. 302; Nowell v. Wright, 3 Allen, 166; 80 Am. Dec. 62; Bishop’s Noncontract Law, § 796.)

It is also held that if an officer of this sort is to be liable for damages, it must appear that the duty imposed upon him was a clear and absolute one. (See cases supra and infra.)

We will therefore first inquire whether the ordinance of the city purports to impose upon the building inspector the duty with the neglect of which he is charged. At the outset we will endeavor to construe the word “see,” as used in section 5. The words are, “and to see that each house or houses, building or buildings, are being erected, constructed, or altered, according to the provisions,” etc. The respondent would give to this word “see” a very literal construction. In his view it would seem to mean simply to look at or to observe. On the other hand we think the word is used in the sense of “to cause to be done or accomplished.” A parallel case may be observed in section 5, article VII, of the constitution of the state, which reads as follows: “ The supreme executive power of the state shall be vested in the governor, who shall see that the laws are faithfully executed.” We are satisfied that the word “see,” in this case, does not mean simply that the governor shall stand by and look at or observe the laws being faithfully executed, but that this provision of the constitution is in the nature of a command to the governor to require the laws to be faithfully executed, whenever there is need for the interposition of the executive arm. The word “see,” as used in the ordinance, is in the sense defined by the “ Century Dictionary,” in the fifth subdivision of definitions of that word, as follows: “To bring about as a result; superintend the execution or the performance of a thing so as to effect a specified result; make sure; with au object clause with‘that’ specifying the result. ‘See that ye fall not by the way.’ (Gen. xiv: 24.)” We are therefore of the opinion that the use of the word “see,” in this ordinance, is the laying of a duty upon the building inspector to require buildings to be erected in accordance with the provisions of the ordinance. It seems to us that any other view of the meaning of the word “see,” in this connection, would be a wholly unreasonable one. Therefore, we may conclude that the duty was clearly imposed upon the building inspector to “see” or to require that the building in question was properly erected.

The allegations of the complaint that the building was not properly erected, in accordance with the ordinance, are perfectly clear; also, the allegations are clear that the inspector did not see that the building was properly erected. Respondents here interpose the suggestion that, even if a duty is imposed upon a public officer, he is not liable for its nonperformance if the law provides him no means for the performance. Cases of bridge and highway commissioners are cited, in which the commissioners had no funds with which to repair the bridge or highway upon which the injury occurred. (Throop on Public Officers, 737, and cases; Garlinghouse v. Jacobs, 29 N. Y. 297; Hines v. City of Lockport, 50 N. Y. 236; Shearman & Redfield on Negligence, § 324, and cases; Nowell v. Wright, 3 Allen, 166; 80 Am. Dec. 62; Mecham on Public Offices, § 669; Cooley on Torts, 399.)

It is contended by respondents that it appears by the complaint that, even if the duty were laid upon the defendant, the building inspector, to require the building to be properly constructed, yet it also appears by the complaint that defendant had no means provided him of performing this duty, and he is therefore not liable, and the demurrer was consequently properly sustained. But we are of opinion that there are allegations in the complaint which dispose of respondent’s contention adversely to him. A total and willful neglect of defendant’s duty is charged. It was his duty to “ visit and inspect” this building (Ordinance, § 5), and to “see”—that is, to require— that it be properly constructed. The defendant not only did not see or require that the building was properly constructed; but he neglected to visit or inspect the building as required by ordinance (§ 5). Moreover, he refused to visit or inspect the building; and, furthermore, he knew that the building was in process of construction, and his neglect and refusal to visit and inspect the building, or to see that it was properly constructed, was wrongful, and with knowledge. By reason of this neglect and refusal of defendant the accident occurred. So that the charge of the complaint is that the ordinance required defendant to perform certain duties, and that he knowingly and willfully not only neglected, but refused, to perform them, and that, as a result of this neglect and refusal, the injury occurred. But it does not appear by the complaint that the defendant had no means by which he could visit or inspect the building, or see that it was properly constructed, nor does it appear by the complaint that defendant was unable so to do. We are therefore of opinion that this complaint is good on demurrer, and that if it be true that defendant had not the means or the ability to visit or inspect, or see that the building was properly constructed, or was prevented from so doing, the question of the defense of such matter may be determined upon an answer..

The objections to the complaint, which we have discussed, are those presented by counsel. The judgment of the district court is reversed, and the case is remanded, with instructions to that court to overrule the demurrer.

Reversed.

---

Concurrence Opinion

Pemberton, C. J., and Harwood, J., concurring.

In our opinion the complaint is not vulnerable in the points attacked by demurrer, as contended by .respondents’ counsel on the argument in this court. The interpretation that the clause of section 5 of the ordinance in question, which provides that “it shall be the duty of every inspector appointed under the provisions of this act to visit and inspect each and any house or houses, building or buildings, which may be in the course of erection, construction, or alteration within the limits of the city, and to see that each house or houses, building or buildings, are being erected, constructed, or altered according to the provisions of this ordinance,” lays upon the building inspector no responsible duty of exertion or action in his official capacity, and authority to inspect and demand of builders a compliance with the provisions of that ordinance, or, when “ seeing” the same violated, to lay such information before other agents of the city, for the purpose of putting in force the means provided by the municipality for the correction of the violation of its ordinances, is untenable. Such interpretation is neither conformable to the definition of the terms used, as shown by dictionaries of authority, nor in accordance with the common understanding of the force and effect of such a command of law applied to such a subject, or found in context like that under consideration, where, all the way through the ordinance, action is enjoined upon the inspector appointed and compensated to discharge the duties therein prescribed. According to the interpretation of counsel for respondents, the building inspector might “see” that the ordinance put under his monitory care was complied, with or violated with the same supine inertia on his part in either case. Under such interpretation, it would have been quite as well, or perhaps even better, as attended with less draught on the people’s revenue, and less danger and deception to inhabitants, arising from the expectation that he would see that any thing was done, for the. city to have appointed a stone or wooden statue, as to appoint a sentient being, to discharge the duties of building “inspector”; for, if respondents’ interpretation of the provisions of the ordinance declaring his duties is correct, whether seeing that the provisions of the ordinance were obeyed, or being utterly oblivious to that fact, amounted to the same thing, so far as responsibility on the part of the inspector to exert himself to demand obedience or cause arrest of violation went, because, under such interpretation, the inspector might “ see” dangerous structures rise up, in violation of the ordinance, to fall and destroy life and property, and yet neither demand compliance with nor report violation of the ordinance to other municipal authorities, in the attempt, at least, to prevent the mischief by setting in motion such means as the municipal government has provided to correct such abuse. This interpretation is not according to the common understanding of the effect of such injunctions of law, as found in the ordinance prescribing the duty of the building inspector.

The other point of objection urged against the complaint— that it does not show that respondent was clothed with the necessary power, or had at his disposal the means of enforcing the provisions of said ordinance, or arresting proceedings in violation of its terms—is not, in our opinion, well taken. Whatever facts in defense respondent may have to shield himself from liability for the injury charged to his negligence should be set up in answer. If he can show that having used the proper diligence in exerting the power of his office, and the other available means which may have been commanded, and having done his duty, the hurt, nevertheless, ensued without his fault, because there were no means of arresting the violation of the ordinance, or because other agents of the municipality did not pursue their duty, if it was necessary to call upon them, those facts are peculiarly matters of defense, to be set up by defendant’s answer. The complaint charges that the damage resulted from the negligence of defendant, in his failure to discharge certain duties pertaining especially to his office. That is the issue which he must meet, and if he .is able to show that the damage resulted, not from his negligence, but from other conditions, it is a matter of defense.

From a careful consideration of all the objections urged against the complaint, we think the demurrer should be overruled, and the order of this court will be entered accordingly.