147 P. 732 | Ariz. | 1915
Lead Opinion
The appellant, as plaintiff, sued for damages for personal injuries received while in the employ of the defendant city as a driver of one of its street-sprinkling carts.
The negligence charged in the complaint is that the defendant city knowingly furnished plaintiff a fractious, unruly and unmanageable team of horses] and that by reason thereof, on June 15, 1913, the team ran away, dragging him for a' considerable distance along the street, until he was thrown upon the ground and the sprinkling-cart passed over his body, inflicting permanent and serious injuries. The defendant interposed a general demurrer to the complaint, which was sustained.. The plaintiff refusing to amend, judgment was entered dismissing complaint.
The position taken by the city is that its charter exempts it from liability in a ease of this kind, and that is one of the points raised and urged under the general demurrer. If this point is well taken, it is not necessary that other points made by defendant be discussed or passed upon. It seems quite certain that it was the intention of the legislature of the territory of Arizona, judging by the language used, that Phoenix should be immune from damages for injuries or loss occasioned by or through the malfeasance, misfeasance or neglect of duty of any of its officers or other authorities. The city received its charter from the territorial legislature in February, 1881. Laws 1881, No. 58. In 1885 the legislature amended the charter (Laws 1885, No. 61), and one of the
“The said corporation shall not be liable to anyone, 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 zanje, 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 the willful neglect of duty enforced upon such officer or person by law, or by the gross negligence or willful misconduct of such officer or person in any other respect.”
At the time of the accident the affairs of the city were carried on by and through what was known as a common council, consisting of a mayor and four eouneilmen. By the charter, article 13, section 1 (Daws of 1885), the common council was to have and exercise exclusive control over the streets, alleys, avenues and sidewalks of the city, with the power to clean or otherwise regulate and improve the same. Paragraph 465, Bevised Statutes of 1901, also gave to cities and common councils in cities power to light and cleanse their streets, alleys' and avenues. The matter of sprinkling the streets—a necessary step to their cleansing—was therefore under the control and direction of the common council. It was for them to say whether the streets should be sprinkled, and to design and provide the methods and means to accomplish that end. To the council’s lot fell the duty of employing men to do the actual work of sprinkling the streets, of furnishing the workmen with sprinkling-carts and with teams to draw the carts. It was the duty of the city to furnish the plaintiff a reasonably safe place in which to work and reasonably safe instrumentalities with which to do his work. The plaintiff contends that this duty of supplying him with reasonably safe instrumentalities with which to prosecute his work was personal to the city, and could not be delegated to others, and that, in contemplation of law, it was the negligent act of the city that caused the plaintiff’s injury.
It is the law that the master may not delegate this particular duty to others, and thereby evade responsibility; but
The plaintiff further contends that the provisions of section 7, article 18, of the charter, attempting to relieve the city from damages occasioned by the neglect of its officers, is unconstitutional and void. Without enumerating the reasons he assigns to support his contention on this point, we may say that in our search we have found such statutes generally upheld by the courts.
In 28 Cyc. 1343, it is said:
“A city may be specifically exempted from liability by its charter”; citing Parsons v. San Francisco, 23 Cal. 462, which fully supports the text.
In Goddard v. Lincoln, 69 Neb. 594, 96 N. W. 273, where the principle we have was before the court, it was said:
“A city is a creature of the legislature; its rights, duties and liabilities are to be measured by the statute under which it exists. Early in the history of this state a city was held liable for injuries resulting from the defective condition of its streets, on the ground that it had exclusive control of such streets, and the legislature had placed ample means at its disposal to maintain its streets in a safe condition. Omaha v. Olmstead, 5 Neb. 446. The principle announced in that ease has since been frequently applied. Aurora v. Cox, 43 Neb. 727, 62 N. W. 66; Lincoln v. O’Brien, 56 Neb. 761, 77 N. W. 76; Beatrice v. Reid, 41 Neb. 214, 59 N. W. 770. As the liability in such eases must rest on some express or implied provision of the statute, it is clear that the legislature may place such limitations upon it as it may deem proper, or, for that matter, take it away entirely. ’ ’
The legislative power to exempt municipal corporations from liability for the negligence of its officers has been recognized in personal injury cases arising out of neglect to keep streets in safe condition for travel in Oregon under charters
“That it is within the power of a legislature to exempt a city from liability to persons receiving injuries on account of streets being defective or out of repair is unquestioned”— citing with approval the O Tlarra ease.
The court in Wilmington v. Ewing, 2 Penne. (Del.) 101, 45 L. R. A. 79, 43 Atl. 307, reviewed most, if not all, of the decisions bearing upon the power of the legislature to exempt a municipal corporation from liability for damages suffered because of the negligence of its officers to keep its streets in suitable condition for travel, and announced its conclusion as follows:
“The power to alter, modify or take away the liability of mu'ffíeijíal corporations for injuries sustained from defective streets and sidewalks has been frequently exercised by state legislature and sustained by the courts.”
But the eases cited by us have not directly involved the power of the legislature to exempt the master from liability for damages occasioned by the neglect of duty or malfeasance or misfeasance of his employees, whereby his servant has been injured. The relation existing between plaintiff and defendant at the time of injury was that of master and servant. The master was the city. It is a creature of the legislature. Its powers, duties and functions are prescribed by law. That law has said:
“The said corporation shall not be liable to anyone [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. ...”
The statutory test of the liability of a municipal corporation, as given by Shearman & Redfield, Law of Negligence, section 254, volume 2, is:
There is no provision of the state or the federal Constitution violated by section 7, article 18, of the city charter, so far as we have been able to discover. The contention of plaintiff: that it violates section 6, article 18, of the state Constitution, providing that the right of action to recover damages for injuries shall never be abrogated, is not tenable, for the reason that said section only undertakes to preserve rights already cognizable by law, and does not undertake to create new rights of action. When the Constitution was adopted the charter of the defendant was in force and effect as a law of the territory, and was carried forward as a law of the state where not repugnant to the Constitution, and by that law the defendant city is exempt from liability for the injury complained of.
We regret exceedingly that the legislature has by its act prevented us from ordering the submission of plaintiff’s claim to a jury of his country, for we are unable to see why, as a matter of justice, the city of Phoenix should not be held liable for its neglect or the neglect of its officers.
Judgment affirmed.
FBANKDIN, J., concurs.
Dissenting Opinion
Dissenting.—I am unable to concur in the order of the majority of the court affirming the judg
Paragraph 468, Civil Code of 1913, provides:
“The defendant may demur to the eomplaint when it appears upon the face thereof, either: ... (6) That the complaint does not state facts sufficient to constitute a cause of action.”
The demurrer filed by the defendant is as follows:
“Comes now the defendant . . . and demurs to the plaintiff’s complaint filed herein, for the reason that the facts stated in plaintiff’s complaint do not constitute a cause of action against the defendant.”
The court sustained this demurrer, and, plaintiff refusing to amend his complaint, judgment was ordered and rendered for defendant.
The briefs of the parties here filed seem to agree that the court made this ruling because in the special charter of the defendant, city of Phoenix, this provision was enacted (section 7, article 18, Act of Territorial Legislature approved March 11, 1885) :
“The said corporation shall not be liable to anyone, 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 zanje, 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 the willful neglect of duty enforced upon such officer or person by law, or by the gross negligence or willful misconduct of such officer or person in any other respect.”
The effect of this provision is to expressly withhold permission of the sovereign to sue one of its agencies in a specified class of actions; that is, to recover for injuries suffered from the negligence of the designated officers.
The complaint is not subject to demurrer for the reasons assigned, because the defect averred does not appear upon the face of the eomplaint. On the other hand, the charter in force at the time the action was commenced gave general
By reference to the present charter of Phoenix, the fact appears that it was in effect on December 1, 1913, and the suit was commenced on May 5, 1914, five months after the charter became effective. The charter contains this provision: “ (c) It may sue and be sued, plead and be impleaded, in all courts of law or equity, in all actions and proceedings whatsoever”—thereby granting permission to sue in all classes of actions, including the class in which the permission had been theretofore expressly withheld.
In Beers v. Arkansas, 20 How. 527, 15 L. Ed. 991, the supreme court of the United States had under consideration the question of the right to sue a state when the state had not granted permission. The court, speaking by TANEY, C. J., said:
“It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals, or by another state. And, as this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it.”
Such a vast number of cases have approved the principle enunciated in this case that a reference to them seems superfluous, but, for convenience, I refer to note appended to the above case in 20 How. 527, 15 L. Ed. 991 (Ex. Ann.).
If the right to grant or withhold the permission to sue is a privilege of sovereignty, and, where the permission has not been granted, the sovereignty may waive it, then it follows that the privilege has been waived by an appearance in the cause by filing a general demurrer alleging that the complaint fails to state facts sufficient to constitute a cause of action. Such appearance and consequent waiver are equal to the granting of permission to the plaintiff to sue in that
The duty, to care for public roads outside of incorporated cities and towns is a public duty of the state. The state has expressly delegated that duty to the incorporated cities and towns over the streets, alleys and public grounds within the cities and towns. Then the defendant, city of Phoenix, while cleansing and earing for its streets, was engaged in the performance of a public duty, a duty in which the inhabitants of the incorporation—the public—were alike interested and benefited. In the performance of that duty the defendant was the sovereign and entitled to all the privileges incident to the matter in hand to which the state would be entitled had it directly performed the duty in the same manner. In prosecuting an action against the city for an injury received through the negligence of the city, the plaintiff is required to bring himself within the conditions prescribed by law before he can maintain his action. Sargent v. Town of Gilford, 66 N. H. 543, 27 Atl. 307.
In my opinion, the order sustaining the general demurrer was reversible error, and the judgment should be reversed and the cause remanded.