*1 1, 1938; Arguеd December affirmed March NOONAN v. CITYOF PORTLAND
(88 (2d) 808) P.
2U
In Banc. (Davis Raymond, of Portland of Harris,
G. E. & appellant. brief), on for Portland, (Prank of Latourette, L. E. Portland S. Grant, brief), respondent. on the for Portland, Kavanaugh, Joseph Woerndle, J. P. and R. N. Kav- anaugh, all of Portland, amici curiae. appeal
ROSSMAN, J. This is an judgment from a of the circuit court entered in favor City plain- defendant, after Portland, completed presentation proof tiff had of her had court sustained the defendant’s motion nonsuit. Plaintiff’s evidence indicated that she was tripped pavement thrown aat street corner caught by heel angle when her a defective iron forming edge purpose the outer curb. angle protect against irons the concrete wheel turning abrasions from vehicles the corner. Wear and developed depression erosion had small between the cement and the iron into which the heel one plaintiff’s throwing pavement. entered, shoes her to the provides:
Section 281 of Portland’s charter “No recourse shall be for dam- age person property or loss or suffered or sustained reason of the defective condition of sidewalk, * * * person street, avenue, but in such case the persons imposed on whom law *4 obligation repair such in defect the sidewalk, street public highway, in or or sewer, and also the officer through negligence or оfficers whose official such de- unrepaired jointly severally remains shall be fect and injured party damage liable to the for the sustained.” city, support judgment, The in of the circuit court’s just principally upon of the charter relies the section quoted applicable it and which, is valid contends, argues plaintiff’s plaintiff claim. The corporate, maintenance of streets and sidewalks is a governmental, pro- not a function, and that this charter Oregon § vision conflicts and 5-502, with Code Oregon, Art. I, with Constitution provides: justice
“No court shall be secret, but shall be ad- openly purchase, completely ministered and without delay, every remedy and without and man shall have by property, injury person, due course of law for him in done his reputation.” or Oregon
Section 5-502, Code reads: may against any “A suit or action be maintained organized counties of this state and Oregon by through State of and and in the name of the * * * Highway State and Commission a contract against any an action or suit be maintained public corporations the other in this state in mentioned (Oregon Code) corporate section 5-501 in its character, scope authority, or an within the of its rights arising to from act some * * public corporation commission of such other foregoing, As seen from the will be seeks immunity plain- to avail itself of suit, while immunity tiff cоntends that such is not available. Dorsey very comprehen- Dr. Robert in a Watkins, Party Litigant treatise as a sive entitled State (45 Hopkins University Johns Studies Historical (1927), p. 1) tracing Political after Science nonsuability through doctrine of the Roman de- law, development England scribes its thus: king system of the feudal “That as chief court could be held him, liable, no above which he *5 his, could was the result rather as feudal lords the any ‘juris- theory. came, from
of accident than This working necessity,’ practical tic but as a result of the system; logical result of out of the feudal it was the upon ‘proprietary system, it that theory based as was The king’s privileges kingship.’ were person capable personal, and natural was such as * * *” exercising; enjoying and development after the decline He then delineates its system. again quote: of the feudal We exemp- position personal then, from the “How The derived? tion, was the idea state following the the idea of the hypothesis. as a reasonable With is offered system growth of and the of the feudal downfall restraints state, the modern the old king king himself the state. vanished. The became by king powers he had held before retained The apex pyramid; position of Church feudal at the virtue his and com- also, head he then became the temporal authority. At attributes with bined Divine sovereignty apрeared. time doctrines of about this * * * passed power actual Even after immunity body king, politic, retained was this idea op- kept by as a democratic the state with was posed an autocratic head.” to the state with in the interval be- Dr. Watldns shows that
Next, nonsuability Devolution and the Constitution tween enjoyed by Hamilton, and that Madi- states, all the was suppose considered it irrational and Marshall son made a defendant. doctrine a state could be according granted, Dr. and Watkins, taken existing people accepted an fact rather as “was theory.” adopted Concerning than states, principle aforementioned article America, states: peculiar thing States, that the United
“It seems Democracies,’ should from its ‘Modern first of the theory practice very inception adopted immunity governmental It is from suit. of all the state the fact that there was remarkable from more figure, king of ir- the attribute no central no whom infallibility responsibility could be attrib- because of affording juristic at least a concrete reason uted, thus argument for the doctrine.” *6 very practical considera- ascribes to The treatise acceptance of doctrine in thus: America, tions the of the States of the were at time “The Union heavily They adoption indebted. of Constitution being pаy these debts no intention of forced had quite proceedings, probably re- court fused to not would adopt had the final draft of Constitution they, people, been assured that no or rather their sovereign right to dishonest diminution of the be would * * *” suffered. be upon adoption of the article comments Next, by developing facts of the Eleventh Amendment Georgia, 2 Dall. 1 440. In 420, L. Ed. Chisholm v. Carolina, Alexander a citizen of South Chisholm, 1791 assumpsit against brought the State of an action of pur Georgia supreme being federal court which, Article III, §2, suaded that the United States Con him maintain his suit, stitution entitled so held. part our read: That Constitution * * * " judicial power shall extend to con party; shall be a troversies to which United States * * * between state and citi to controversies state.” zens of another
Shortly announced the after this decision was the federal Amendment to Constitution Eleventh litigation rendering impossible adopted, further kind. of that nonsuability adopted the doctrine
After gained and had for itself in this manner in America a secure in our place there jurisprudence, came, next to Dr. according Watkins, efforts part courts and legal scholars to state reasons for it. other words, acceptance the doctrine and the assignment of reasons supporting were not simultane- ous—the former was first. As we leave this treatise, we add that a companion article The Doctrine of Nonsuability State in the United Dr. States by Karl Singeweld, Johns Hopkins Studies University in Historical and Political Science 343. (1910)
We hope the foregoing will be useful as a sort to the prelude solution of the problem before us. Not alone has Dr. Watkins found that the acceptance doctrine America was prompted by practical considerations; Chief Justice Marshall himself so stated in Cohens v. Virginia, Wheat. 264 5 L. (405), Ed. 257.
“It is a of our part history, that, at the adoption of the constitution, all the states were greatly indebted; and the apprehension these debts might prose- *7 cuted in the federal courts, formed a very serious ob- jection to that instrument. Suits were instituted; and the court maintained its jurisdiction. The alarm was general; to and, quiet the apprehensions that were so extensively entertained, this amendment was proposed in congress, and adopted by the state legislatures. That its motive was not to maintain the sovereignty of a from state the degradation to supposed attend com- pulsory appearance before the tribunal of the nation, may be from the inferred terms of the amendment. [*] # ?* ?
As will be observed from the foregoing, the doctrine was nonsuability America an accepted as existing fact —after it had made its appearance came the ef- forts to reasons for it. assign None of the reasons has escaped criticism —barbed criticism —but the following Polyblank, Mr. Holmes in Justice Kawananakoa v. gen 205 U. S. 51 L. Ed. most S. Ct. is erally quoted: sovereign exempt
“A from is because suit, conception theory, formal but on the or obsolete logical practical ground legal can no that there right authority that makes the on law right depends.” which the early Alexandria, case of 3 Pet. Fowle v. supreme L. Ed. 398, 7 719, the federal court “distin guished ‘moneyed corporations, carry between or those ing on fob business themselves’—liable for torts —and ‘municipal corporations,’ general ‘established for the purposes government’ Oregon so liable.”: 16 —not theory municipality Law Rev. 250. that a Under is body politic purpose administering for the within innnunity its boundaries the affairs of the state, by municipalities. suit soon claimed The courts perceived engaged perform that when a governmental ance of a function state would compelled perform, nonsuability otherwise have been to is as available to it as it would have been state; municipality engaged but that when is not in performance employéd a function, such but is in the justly escape domain of commerce, it can no more consequences wrongs may it whatever do than if similarly engaged. an individual werе Influenced promote these considerations, in order courts, justice subject municipalities liability and to where it was deemed that should be made borne, governmental corporate distinction between func municipalities. engaged perform tions of While in the respondeat superior ance of former the doctrine of *8 applicable, responsible is not and hence a is not negligence opera- of its but servants; when the respondeat corporate rule of character, tion in is superior applicable must answer for the and the wrongdoings this distinction has of its servants. While municipalities in in numerous liable rendered the immunity otherwise been stances where would criti distinction has met with extensive available, the apart by and, in the reviews cism writers law (Borchard support Lia occasional limited Government 240), bility L. The 34 Yale J. with no defense. Tort, adoption widespread form munic of the commission of ipal government has increased the insistence municipal 'activity part deemed critics that no Although profit governmental. no from the is derived early English history of streets which maintenance by government, although they were constructed by commonly only used local residents are but today nevertheless, the maintenance of others, also generally regarded corporаte streets is function, ‘ ‘illogical exception” has termed an due to what general nonliability. general of The rule to the rule governmental most activities which are of a non deems performed character and which are for the commercial general public. employs This state benefit nonsuability of and makes distinction be doctrine" governmental corporate functions. tween The corpo in this state is maintenance of streets deemed (2d) City 159 Or. 75 P. Union, rate: 977. Blue v. many municipalities of times From the earliest this escaped for failure to maintain their state have repair in their in a state insertion charters streets general exemption kind clauses mentioned in paragraph of this decision. the second sustaining validity decisions earliest our clause is of a charter O’Harra *9 upon injured wherein the Portland, plaintiff, 3 Or. of the recovery sidewalk, sought defective Portland Code, Lane pred- Deady Section 347 damages. of 5-502, Oregon provided: ecessor Code § county maintained or “An action may described mentioned or other of the public corporations * * * to the of rights for an injury § such from act or omission of some arising county corporation.” or other public code
Section 346 of the same provided: county, by any at be maintained “An action law cor- or other town, district, public school incorporated ** like character of poration 347 was court, adopted The after stating amended later the years legislature and that two in it the following: by inserting the Portland charter for anyone any Portland not liable to “The * * * out of the growing to the injury person _ declared: “This streets,” provision of any condition seen, expressly exempts it will be charter, received injuries for persons from to city any or of repairs.” defective out being on account of streets favor. in the plaintiff’s a judgment It reversed the circuit court Buckman, In Rankin v. alleged to a complaint a demurrer had sustained on a had been street injured ward the plaintiff’s and that Portland, defendants, East city in the the street, city, permitted of that officials an con remain in unsafe negligence, willful through not a defendant. re party city dition. court, decision, the circuit ruling versing from the city’s quoted Chief Justice by written Lord, following: charter one any Portland is not liable of East
“The or growing or person property loss any 22á any casualty prop- person or to such or
out of accident erty, any public on account of the condition of street or any ground but this section does not exonerate therein, any per- officer of the of East or other Portland, liability, casualty or son, such when such accident by enjoined neglect duty is caused the wilful gross neg- person such or law, officer or ligence person in officer or wilful conduct such respect.” other City Port-
The decision declared: “In O’Harra *10 provision 3 a similar to this clause was land, 526, Or. provision constitutional,” held to be and added that the city exempted “imposes liability from the which the is upon any city” in such case officer of the who guilty neglect. city’s be of willful It continued that the liability by this of charter from “is shifted section the ** * corporation Bearing the the to officer. city exempted by § mind that the is 33 of charter, the liability any person growing from for the to out any any of accident on account of the condition of any officer street, but that section does not exonerate city liability from such accident is when the by duty enjoined neglect upon caused the wilful of a such officer.” City 12 Sheridan v. P. Salem, 328, 925, of appeal by city judgment
was an the from a recovered against injured pedestrian upon it a a crosswall?. express Mr. tool? occasion Justice his dis- Thayer approval the of rule which held rather than cities, the negligent public responsible person officials, when is injured upon public a defective street. The decision continued: ‘‘Many larger towns the state have avoided by provisions exempting
its the town in their charters effects, liability imposing
from in such and cаse, it guilty they have been thereof, the officers where injury.” negligence that occasioned 87 Am. 65 P. Mattson v. Astoria, Or. Rep. St. Chief which was written decision, judgment court Justice of the circuit Bean, affirmed city after that court held invalid city’s city following clause charter: “Neither any of Astoria nor shall member of council thereof any any damages resulting manner held liable for high alley from a condition of street, defective way.” pointed gave The decision that the out charter authority city over streets, council power to exercise these functions and to assess and necessary collect the taxes. The court held that the its both officials violated provisions Article of our I, Constitution, adding, power leg however, “that it is within the of a exempt persons islature re ceiving injuries being on account of streets defective repair, unquestioned: or out of O’Harra v. injured party 525. Portland, 3 Or. But in such case the wholly remedy. may proceed per is without He *11 sonally against the officers.” It cited numerous au holding an thorities who officer assumes the duties powers public and is invested with the of a office is injured through neglect, liable to one by declaring: his and concluded provision city
“A
therefore of the
char
city
exempting
liability
damages
ter
the
for
re
sulting from defective
is not
streets
of
violative
the
provision
Constitutional
to,
referred
because it does
deny
injured
wholly
party
remedy
a
for wrong suffered.”
Oregon City,
In
18 Ann. Cas. who had been through sidewalk, instituted of a defective condition a city against counciknen which re- and its an action judgment favor of in a sulted judgment. city appealed The from the the officials. provided: The charter any any
“Oregon City one for loss not liable to is growing any property person or out of or person prop- casualty happening or to such accident or public any erty or of the condition of street on account any ground not exonerate this action does therein; but person Oregon City any from such other or officer of by casualty liability, caused or accident is such when any duty enjoined neglect offi- such the willful by gross negligence person or will- or law, cer or person other such officer ful misconduct of respect.” exemption grant holding that the charter’s municipality the decision stated: invalid, was
to the upheld as a valid exercise clause “If that person necessarily a legislative will follows itwill, pecuniary in conse- a loss sustains who be remediless being quence improved in a con- defective street of an by ordinary negligence. occasioned dition which * * * recovery restricted is but, where negligence gross incorporation and limited act practically city, denies charter to the officers injured, remedy any person Section contravenes Oregon, void, is therefore I, Article Constitution liability law, at common as it existed and leaves negligence.” whereby such for accountable validity recognized however, decision, instance, after clauses; other charter supra, and Rankin v. reviewing Portland, O’Harra supra, it stated: Buckman, municipal charter that a announced, thus “The rule corporation from exempt specially
227
keep
highways
repair,
in
and
for a
its
failure
any
of
such enactment
not violative
constitutional
recognized: Templeton
provision,
Linn Co.,
has been
v.
730);
(29
22
San
Pac.
R. A.
Parsons v.
15 L.
795,
313
Piercy Averill,
in for an caused * * * dangerous place any defect or at or sidewall?:, mayor, unless the chairman committee, street or street commissioner shall have had actual notice of dangеrous place, such defect or and a reasonable time repair thereafter which to or remove such defect or dangerous place happening before the of such accident injury, and in no case shall more than be re- $100 damages, covered as or from such accident injury.” judgment The court circuit set a verdict aside plaintiff, stating erroneously in favor of the that it had deprived provision. benefit the above plaintiff appealed. court, The decision this writ- pointing ten Chief Justice after out the dif- Mooke, ference this charter and the between two held invalid supra, Oregon Astoria, Mattson v. Batdorff City, supra, Eugene held charter did not in- fringe upon Oregon Art. I, 10, It Constitution. evidently opinion previous of the court that its
228 legal sufficiently developed prin- the
decisions just apart ciples men- from the matter since, involved following statement: itself with the it contented tioned, by official dere- for a loss occasioned “To recover duty, involving an action $100, more than of not liction may against If, herein. the defendant be maintained negligence injury caused the amount however, the agents ac- sum, an its exceeds or defendant against the mu- the officers of tion be maintained duty to be nicipality to cause the street it was whose highway kept repaired, able condition in suit- that the and to see remedy public such a travel. Since availing, to does of the charter referred the section is fundamental law the clause of the the violate state.” rehearing peti- petitions
Although and a for a two adhered the court filed, the were tion to recall mandate judgment the cir- the affirmed decision which to its cuit court. Humphry P. the 430, 154 79 Or. Portland, injured upon made
plaintiff, sidewalk, a had been who mayor, city, the councilmen, the defendants abutting property After the engineer owner. and the joined, as defend court dismissed had been issues upon mayor motion. councilmen their and the ants the against judgment alone, was entered After trial upon appeal, depended upon of its charter, 281 which, para quoted being in the second section identical opinion. graph In the written Chief decision, of this city, reversing judgment Justice Moore, a fourth con concurred, court members of the two From the fifth dissented. result, in the curred following quoted: opinion analogy “By on the doctrine asserted and based County (C. Deady by Judge in Eastman v. Clackamas recognized by C.), Mr. Justice Lord Fed. 32 Templeton County, (29 in 795, v. Linn Pac. 703), municipal corpo 15 L. R. A. conclude a we governing ration, in the absence of statute the mat person sustaining injury ter, is liable to a an from a repair defective street incumbent sidewalk, of which it is keep up, if it have the means performing duty granted right or is of taxa given power levying special tion or for that assessment
purpose, and we adhere to the rule heretofore asserted, that under I, Article Section the Con Oregon, right stitution of ages of action to recover dam abridged for an thus cannot so sustained by legislation deprive injured party as to of all remedy. by proper *14 It is that conceded, however, enact imposed upon municipal ment the thus cor poration may agents.” be shifted its to officers or opinion
The
continued
awith
consideration of the
governmental
corporate
distinction between
and
func-
expressed
tions and
the belief that maintenance of a
governmental duty
neglect
is a
street
for the
of which
is not liable.
Colby City
Portland,
85 Or.
nates exercised opinion following part The is the lection. which we refer: " neither here, it stands is out of the case as party having appealed be bnt it well it, charter-making competent for the it is doubted whether remedy respon away complete
power plaintiff a from to take always against city, and solvent which is point will city where and whittle down to sible, remedy against partial and doubtful position officer whose a subordinate officers inspector deputy perhaps, than a a little lower is, dog-catcher. higher To the that of than a little contrary to a conclusion is seems that such writer it justice opposition laid to the doctrine and in direct (100 Oregon City, Pac. 53 Or. in Batdorff v. down 287).” 937, Ann. Cas. stating: dissented, Mr. Justice Moore reached this conclusion “I concur in the cannot contrary A rule estab- was case Justice. the Chief City Portland, lished in the case of O’Harra of the charter held that a section it was where municipality exempting Portland the liability arising any personal from a defec- pre- operative. has That determination tive street forty-eight years nearly should, in this state vailed controlling.” my opinion, *15 City P. 169 was 86 Or. Vale, v. Caviness of injured upon by appeal been an individual who an had judgment in favor of the from a sidewalk a defective complaint sus- city, to after its demurrer only city not also but The defendants were tained. adjoining connoilmen of the lot and the owner its provided: The charter sidewall?:. defective duty only all of land within of owners “It not keep repair city and to sidewalks construct existing along all of, sidewalks constructed or front abutting upon respective parts their lots or thereof parcels hereby and but owners are de- land, such damages clared to be liable for all to whomsoever re- sulting, arising negligence from fault or in fail- their ing put repair, to construct or such sidewalks in no action shall be maintained of Yale by any person injured through byor means of the lack any of or defect in sidewalk.” affirming judgment,
In Chief Justice McBride, Oregon author of declared that decision, v. Batdorff City, supra, firmly “seemed settle the rule in this that state, city exempt before a can itself from a at exists both common law and virtue our Consti- provide equivalent remedy; it must an tution, rea- one sonably adequate purpose to serve the of the one taken away. subsequent In cases it has been assumed that city provided general a where charter in with the terms that city charged duty keep- officers ing ing repair, injuries a street in should be liable for aris- neglect perform duty, from their such furnished equivalent remedy, provision an such city exempt responsibility. sufficient to Colby City (166 537), of Portland, Pac. pointed provision it was out that such a did not furnish remedy substantially equivalent to the one taken away, for the reason that while was liable on superior principle respondeat wrongful for the the neglect keep repair, of its officers to streets in * * *” of the council liable; members were so Colby City that in He continued Portland “we constitutionality” intimated a as to the doubt exemption clause, Portland charter and concluded responsibility having not shift “can once as- giving persons injured it, sumed without who adequate remedy reasonable, defective walks some ’’ injury. for such The decision sustained char- the Yale *16 exemption provision by pointing placed ont that it ter property duty “the to build the walk owner keep repair in and to it in thereafter. the first instance * * * justice is under such circumstances There requiring responsible any dam- in the owner to be for * * * age neglect. ensue reason his which abutting property prima facie sol- The owner required remedy and it is not that the afforded vent, guaranteeing go to the the immediate should extent judgment any might collection be obtained Newberg, In Platt v. 205 P. plaintiff, injured upon a sued the sidewalk, defective city, mayor its and its councilmen. At the cоnclusion plaintiff’s the court sustained mo- evidence tion for nonsuit of the officials. The trial resulted judgment against city. in a and verdict The latter appealed judgment plaintiff ap- from that and the pealed judgment in from the favor of The the officials. city charter vested in the exclusive control over its duty imposed upon maintaining it streets, them, gave ample power it taxation to secure the neces- granted sary powers funds. were vested in the mayor provided: and council. The charter City Newberg “The shall not in event be damages any person an liable caused * * * dangerous by any place, or defect unless actual said shall have had notice of such defect or dangerous place and had a reasonable time thereafter * * * repair and in no case shall more dollars be than one hundred recovered ’’ injury. for such accident sustaining validity of this clause reversing judgments, both the decision, written principle Mr. observed that Justice *17 McCourt, Oregon embodied in Art. I, 10, bor Constitution, was Magna equal rowed from and that a Cbarta rule of dignity nonsuability. citing was the doctrine of After Oregon preceding all of the decisions in reviewed the paragraphs together with v. La 73 Grande, Coleman Templeton County, 144 P. 521, 468, Or. and v. Linn 22 P. 313, 15 L. R. A. 795, the decision 730, con tinued : “Eelying upon the rules of law declared in fore- the going the lеgislature long decisions, the so as it exercised power municipal corporations, to incorpo- create many municipal rated in pro- charters enacted it, exempting municipality liability
visions
from
discharge
duty
keeping
failure to
pair,
has
streets in re-
power
legislature
and
respect
of the
in that
recognized by
early day,
this court from an
question
and
ercise that
right
it would seem that the
of the
to ex-
power
firmly
in
settled
this state.”
although
plaintiff
The decision stated that
argued
Colby
that
Portland
Caviness v. Vale
“upholding
overruled
authority
earlier decisions
legislature
exempt
municipality
from lia-
bility,”
court
believed that “those decisions do not
duty
that effect.” It indicated a belief that maintaining highways
repair
governmental
again quote
nature. We
from the decision:
“The
hold
cases
with
if
little,
dissent,
legislature may exempt municipality
from
highways, may
modify
for defects in
or
also
such lia-
* * *”
away;
bilities or take them
That statement was fortified with citation of sev-
together
quotations
eral decisions and texts
with
from
Schigley v.
106 Minn.
Waseca,
94,
Ann. Cas. R. MacMullen (N. N. E. L. R. A. 863, 11 187 N. Y. Middletown, Municipal Corporations (5th S.) and Dillon on ed.), §1709. decision continued: foregoing amply authorities sustain the “The exempt power legislature from lia- discharge governmental bility duties, existing against modify any liability restrict or city, by implication byor ex- the same аrises whether statutory press provision. pro- establish
“The authorities reviewed relies vision of the Constitution (Section Const.) application no to a case Art. has I, sovereign privilege of the state involves the which its subordinate tion. immunity agencies private ac- ‘every *18 that man shall have law, The rule of injury remedy by him,’ for done course of law due state cannot be to the doctrine subordinate given Thus when consent is its consent. sued without acting municipality, or a when sue, to either state agent, legislative of and favor, it is a matter as a state or modified or re- time, at be withdrawn * * * legislature. It fol- of the at the will stricted limiting provisions of the charter that the lows lia- injuries city bility for due to defendant to of the $100 liability exempting nonrepair it from of streets, altogether defect, actual notice was unless * * legislative power exercise of a valid was A third and Bean dissented.
Justices McBride participate in the decision. did not the court member of 159 Or. Union, case of Blue v. In the recent delivering (2d) Mr. Justice 977, 5, 75 Lusk, P. duty describing majority opinion, street after corporate that in character, said Ore- maintenance perform properly city’s to failure gon a except in those instances duty denied “never been has provision exempted a valid has been where
235 Mr, dissenting charter,” in his in its Justice Band, opinion, sаid: prohibited by provision some of the fed- “Unless power constitution, eral or it is within state legislature provide or shall not be that a shall to municipal duty. perform It failure a
liable for its destroy rights cannot, of which would course, vested taking compensation, property nor can be a it without impair obligation pro- These are of contracts. hibited both no the federal and state constitutions. But remedy person right for an has vested may may happen in the future because not tort.” some future all deci above constitutes review of determining validity sions of this court of charter However, clauses. Eastman v. Clackamas County, County, Templeton 22 Fed. v. Linn Or. 24, 32 29 P. L. R. A. 313, 795, 15 730, Schroeder v. Multnomah County, 45 76 P. v. Multnomah 92, 772, Or. Gerber County, (2d) P. also Or. been precis A cited. of the first two decisions is set forth in County, Gearin v. Marion 223 P. quote:
which we reasoning sup- “The of the court in the first case ports theory, plaintiff’s reasoning but this has not adopted as the law of this state and the conclusion by Judge Deady necessary there reached of that the decision plained case as accident there com- happened before the amendment of what is *19 358, L., and as this as so amendment, now Section Or. by Deady, Judge operate held did not the effect to remedy by retrospectively, given the the statute as it prior had not to the amendment been defeated. existed notwithstanding dissenting opin- case, In the latter majority opinion held to Lord, ion of Mr. Justice contrary is contended for In of what here. .that among things, Strahan, Mr. other case Chief Justice against county by a said: ‘The statute, created this prior as it the amendment in existed to 1887, recognized v. Multnomah and enforced in McCalla County, 3 and rule there stated continued Or. recognized to until amendment. This is first be arising case reached this under the statute as amended has being court. no lia- There common-law bility, is is liability, unless has created a the statute there having repealed, none; and the statute been there competent if statute, under it were for the none legislature in Mr. can repeal to it.’ That decision was concurred
by legislature Bean who said: ‘If Justice
constitutionally away take both the common law statutory right against municipal action and cor- poration way, high- an received from a defective certainly statutory remedy
it can withdraw the county. provision the constitution in this case does not seem to have under consideration by noticed or considered the courts in ’Harra v. O Portland, result of that is fatal but the decision to to prepared plaintiff’s and I am not here, contention say at conclusion, that'such a so far least as the statu- tory right concerned, incorrect, of action is and concur in the result reached therefore Chief ” Justice.’ Coimty, supra, this v. Multnomah Schroeder through Mr. Justice said: court, Bean, accepted must, think, that, “It we as settled law county is not liable for statute, unless made so injury resulting public from a in a road or an defect may require highway, notwithstanding it to the law give ample highway repair, keep power it such road or discharge provide to means with which Templeton obligation. the decision Such was County, 22 P. 15 L. R. A. Linn notwithstanding argument ably of counsel, restating grounds upon sought it which was disposed are not action, maintain that we overrule * * *” the decision. *20 supra, County, action In v. Multnomah Gerber Oregon upon which Code 44-3401, based was county- injured upon defective travelers authorized conditions exacted meet the able to roads, who were county not to ex- and recover to sue statute, damages. no fault manifested The decision $2,000 ceed since laws, of our but that section with judg- compliance a exactions, its with had not shown in favor reversed. ment his was from these a rule endeavor to deduce
Let us now doing note of to take Before so it is well decisions. following principles deem well established which we jurisdiction: in this
(1) is streets and sidewalks The maintenance of governmental, ministerial, a not a function.
(2) exemption law, negligence In the absence of valid through an is liable for incurred its failing and in a to maintain its streets sidewalks proper condition. that in
It is seen from the above review v. O’Harra Eugene, Humphry Portland, Portland, Pullen v. v. Newberg, this court v. and Platt v. held Vale Caviness exemption In valid charter clauses. the third of the above-cited decisions the clause which was held valid are the identical one with which we now concerned. validity circuit court sustained the addition the exemption Colby clause v. and Portland, this validity recognized the of such clauses in court Rankin injured Since v. Buckman Sheridan Salem. person did not make Rankin v. Buckman the munic- ipality possibly an defendant, inference warranted that the decision in that she believed O’Harra v. Port- concerning validity all doubts had removed land only exemption of charter clauses. clauses been held invalid were those which attempted only to render nonsuable, but negligent also the officials: Mattson v. Astoria, Oregon City. Batdorff *21 City v. O’Harra decided in 1869, Portland was of
seventy years ago; fifty- in 1881, Rankin v. Buckman years ago; eight fifty- in 1886, Sheridan Salem years ago. intervening years many In the three ses legislature many sions of the have occurred, amend many ments have been made to our Constitution, and by people through have made enactments power, exercise of the but no initiative enactment has pronouncements the basis of the undermined in those contrary, decisiоns. To the after those three decisions p. had been announced 1893 Session Laws, 119, 34 adopted, (p. 131) provides: * * * “ city any and such or town shall not in event any damages any person injury liable for- be caused for by any dangerous place, any defect or at or in alley, bridge, public ground, sidewalk, crosswalk, street, public building, or unless ditch, such or town shall dangerous of actual notice such defect or place, and a time reasonable thereafter in which to repair dangerous place or such or remove defect before happening injury, of such the case accident or and in no damages shall more than be recovered $100 any such or town for such accident or injury.” Portland’s charter was not
Since conferred by part, pro- it the statute of which the is a above applicable Umphlette is it: vision Sil- (2d) 59 P. verton, 244. Nevertheless, of that act and of enactment others which shall we now quote are indicative reliance which those con- municipal probably placed upon with affairs cerned Twenty-three this court. Nineteen the decisions of Oregon p. § 35-3404, Code Laws, Ch. Session inspection provide: being part law, of our dental any shall director, “No or school district, school guardian any pupil, parents or to or be liable any any any pupil, for accоunt claim nature or on damage any on action of account whatsoever hereby any person in connection with dental treatment authorized.” acting power, people,
In 1908the under initiative 1930): following (§ Oregon adopted the Code 65-1234, cargo, being “If a vessel or while towed a vessel operated by or or while Portland, owned Port of charge pilot employee of Port of under the Portland, of a injured or lost reason fault of tug, negligence incompetency or such or of such pilot, the Port of Portland shall not be liable for $10,000.00.” thereof excess of loss *22 employing decisions, These several all substantial justify ly principles, employment seem the the same present the action of stare decisis. doctrine support principle rule “finds its in the That sound guidance gov announced, have for the and courts when public, and certain of individuals control ernment given ling principles of law or have a construction to public upon individuals and the re which have statutes they making ought prin after contracts, not, these lied promulgated ciples and after have been these construc published, have been withdraw tions overrule disturbing rights thereby contract them, been rights property acquired that had into and entered principle upon faith and credit that announced adopted opinion in the construction or the the law p. § Am. Courts, land.”: 14 Jurs. 60. great The doctrine of stare decisis attaches weight admin to decisions which have invited those who governmental depend npon ister affairs to them as cor expositions rect and likewise incline law, which governmental those deal to determine who with bodies upon their demands and course of action the decisions already announced. of stare decisis While doctrine great weight (Hubley’s precedents attaches Guardian Ky. (2d) 830, v. S. 101 A. L. R. Wolfe, 574, 82 W. 1359), it that the adhere to them does demand courts wrong. they manifestly if satisfied that are previous exception claims that our decisions, with Oregon City, and Mattson Astoria Batdorff vigorously supported are in this claim she is error. by the brief of amici curiae. upon
The attacks these decisions are based following (1) contentions: Portland charter exemption § Oregon I, clause conflicts with Art. (“every remedy by Constitution man shall due * * injury *”); (2) law for done him course of Oregon § clause conflicts with 5-502, Code authorizes 1930, the institution of actions corporate municipality capacity;” “in its (3) Oregon preserves XVIII, Art. Constitution, following provision pp. of Laws of 1853-1854, 167 and (concerning against municipal corpora- actions * * * tions) brought action : “An for an rights plaintiff, arising to the from some body repre- officers, act or omission such or the provision just them” that, sented therefore, the quoted authorizes the maintenance of this action.
The seems believe that the substance of her contentions was overlooked when this court con- the above-mentioned cases. sidered It is true, as was pointed Colby out Mr. in Justice McBride v. Port City made no men land, O’Harra v. Portland of Oregon beginning § tion of Art. I, 10, Constitution, but, fourth of the Astoria, with Mattson v. above-cited every concerning decisions, decision of this court ex emption upon clauses bestowed extensive consideration Eugene, that section of our Constitution. Pullen v. Humphry v. v. Portland, Caviness Platt v. Vale Newberg, considering after that section, sustained the validity exemption clauses under consideration Templeton quoted County in them. v. Linn also interpreted that section of our Constitution. Oregon predeces-
Section 5-502, Code and its sors have received much attention the consideration exemption history of clauses. The of as far 5-502, given City supra, back v. Union, Blue of previous chapter and a is mentioned in O’Harra v. City supra. Apparently Portland, the statute had of inception pp. its with Laws of 1853-1854, 167-168,above quoted. City In O’Harra v. Portland the court pointed years legislature out that after two enacted the statute with which we are now concerned, containing it conferred Portlаnd its charter exemption clause. fact that the charter was sub- sequent apparently persuaded in time the court that it, controlling. and not the statute, The statute was again Buckman, considered Rankin v. and the court, taking after note the fact that Bast Portland’s granted charter was after the enactment of the statute, City purpose cited O’Harra Portland for the indicating validity of the charter’s clause. again Sheridan the statute Salem received and the attention court found that its construction be- County came established in McCalla v. Multnomah, *24 prec upon placed it there The construction 424. 3 Or. holding, do, it inclined as was the court luded only “act or omission” for some were suable that cities corporate the breach strictly and not for character, aof keeping they public, such owed to “duties repair.” good The statute public in and streets roads v. again reached Blue until we mentioned was not in extensive attention it received Union, in which dissenting opinions. prevailing and the both the plaintiff, that Article contention of The third preserved Oregon § Laws of Constitution, XVIII, concerning pp. the maintenance 167-168, 1853-1854, corporations, against municipal the basis, actions dissenting part, opinion Mr. Justice in Lord County, Templeton Linn but Chief Justice Strahan in v. rejected by pointing Article XVIII, out that that view only rights. preserved vested purpose of in- have set forth the above for the
We dicating presented that all of the contentions past plaintiff in the received consideration this court. plaintiff and amici curiae before,
As we stated except do that of the above decisions, not concede Oregon City, Mattson v. Astoria were Batdorff correctly principal decided. Their criticism Newberg Humphry v. Portland and Platt v. is that a statement was made that the each of those decisions governmental maintenance of streets is function. argues, That must have led to an error, determination of the cases. But we believe erroneous theory that each of the two criticised decisions the governmental the maintenance of streets is only character was one of the bases decision. reviewing Humphry its this after court, case earlier stated: decisions, by proper enact- however, “It conceded, thus; imposed municipal
ment corporation to its be shifted officers.” Newberg stated: And in the decision Platt *25 duty imposes expressly the “When charter the that liability exempts municipality in- the from for such juries, nicipality requisite consent of the state that the mu- * * * may be eases sued is withheld. The any, may legislature hold if little, dissent, with liability exempt municipality from for defects highways, may modify but also such or take liabilities * * * away. foregoing amply them authorities power legislature exempt sustain the of the to liability discharge governmental from in the duties, modify any liability existing or to restrict or * * * city. ‘every The rule of man law, remedy by injury shall due course law for him,’ done to is subordinate the doctrine that state ’’ cannot be sued without its consent. bring by to a We close the review of these decisions quoting following Municipal from 7 McQuillin, Corps., (2nd ed.), § 2906: states, “Statutes in other where there is a common liability, wholly liability
law limit or abolish the of the municipality. has legislature And it is well settled that the
power, in the absence of constitutional restriction, liability municipalities to limit the as to defective highways, wholly exempt any or even them from liability injuries resulting for streets. defective * * * provision aSo charter which or en- limits, tirely away liability municipality, takes of the * * * objectionable legislation. not ing as class Hav- power deny right to individuals a for of action against municipalities injuries resulting from de- legislature, fective streets the if not forbidden 24A: it may impose conditions Constitution, may re- prescribe. rule charters home So notice
chooses to municipality, prior days’ quire to the ten written defect a street of a accident, of the existence to the # # #_ legislature And settled that it is well injury may require on cer- to be served of the notiсe specified municipal within a officers, or officer tain * * * provisions injury. Charter after the time liability municipality limiting exempting, for or resulting injuries streets and from defective side- negligent liability public imposing on such walks, abutting land own- sidewalks, on in case of officers, or generally and constitu- as valid are sustained ers, * * *” tional. Municipal Corps., p. § 1759,we J., From 48 C. quote: exempted by may specifically municipality its “A injuries caused defects in for charter from modify legislature lia- limit or such or the streets, requiring impose
bility conditions, such present injured give person his notice the prescribed, damages in time and manner claim *26 denying although a has held that the it statute remedy against injured person at either the all, * * *” agents, municipality or is invalid; its officers Municipal Corps. (5th ed.), 4 Dillon, like effect See to Highways, p. § 261. Addi- § L., and 13 R. C. Newberg, supra. in Platt v. are cited tional authorities previous decisions that all of our were We believe correctly their reasons were sound, decided exception that deemed the mainte- of those with governmental function. nance of a We shall streets approve they repeat reasons which we are set — preceding clearness in the de- forth with sufficient give cisions-—but now additional ones which we believe validity also sustain of the charter clauses. supporting plaintiff’s the statement with briеf,
The
duty
quotations
“The
twice states:
charter,
upon
imposed
the defendant
at
the case
bar
provisions
ordi
and charter
of Portland
charter
* * *”
duty
to which she
nances as follows
and sidewalks.
refers is the maintenance of streets
city negli-
an
therefore,
This is not
where the
instance,
gently
voluntarily
performed
duty
a
which it had
as-
city voluntarily
sumed. If a
enters into the
business
operating laundry, garage, gas plant
a
a
or some other
industry
hopes
from which it
an economic ad-
derive
vantage,
voluntary entry
its
into
venture and the
good
commercial character
latter afford
reasons
visiting upon
consequences
for
all of the
ordinarily
upon
performance
corpo-
attendant
ill
plaintiff’s
rate functions.
as the
But,
brief states in
quoted,
duty
city neg-
the words above
which the
‘‘imposed
’’upon
duty
lected was
it
its charter. The
maintaining
although
corporate
streets,
one when
performed by
city,
duty
appropriate
is a
likewise
performance by
the state. In
fact, we have seen,
government
it
which built and maintained the
highways
early English history. Today
the State of
Oregon possesses
power
to construct and maintain
connecting
such of the
streets as constitute
links
highways:
§
in state
1931 Session
Ch.
1. It
Laws,
everyday
power
is a matter of
observation that this
pause
is exercised. We
to observe
if an
through
occurs
a state-maintained street
negligence
recovery against
of the state, there can be no
Oregon
it because 5-502,
Code 1930, does not authorize
tort actions
the state;
therefore,
if another
injured
person,
away upon
intersecting
a few feet
an
*27
by
city,
recovery,
street maintained
can secure
contends, we have a novel situation. When
duty
imposed upon
Portland the
street
the state
right
city’s
to set forth in the
maintenance it had
consequences
when
which should follow
charter
injury through
city’s neglect
anyone
suffered an
duty:
187 N. Y.
Middletown,
MacMullen
(N.S.)
Henry v.
391;
Lincoln,
11 L. R. A.
Again, although the maintenance of streets corporate well-kept function, streets contribute to the
347 etc. it not convenience, Were welfare, security, general their termed an “illogical exception” for what has been func- deemed a governmental maintenance would be In Etter v. P. Eugene, tion. 157 Or. (2d) in a held that cities maintain their parks we public make Streets as well as governmental capacity. parks It their to the general well-being. is, contribution believe, because streets serve not the only corporate we all also the of cities that governmental objectives but our decisions that a be recognized city may have but conditional given, absolute, immunity for street accidents —conditioned lia- liability upon in someone who owed a to main- bility reposing duty Vale, supra, Caviness tain them. owner sufficed. The Port- adjacent property
land charter besides recognizing negligent public officials should for the occa- respond sioned their neglect, also imposes upon abutting owner, after of notice from property receipt engineer, duty of the sidewalk. The repairing charter concerned, clause with which are we after exempting city, states:
“In such case or on whom the person persons law imposed obligation to such repair * * * defect in the street or sidewalk, public highway and also the officer or through officers whose official negligence such defect remains shall unrepaired * * ” liable jointly severally injured party 116 of
Section charter provides: Portland’s only “It is not of all duty owners of land within in all keep repairs sidewalks, constructed or of, front or existing along their abutting upon * * * lots but respective hereby such owners are declared to be liable all to whomsoever damages from their resulting, arising fault or negligence fail- ing put repair, such sidewall?: after the owner * * *” agent provided thereof has been notified as similarly abutting At common law the owner was not (2nd responsible: Municipal Corporations McQuillin, ed.), § and Bees v. & Mitchell Co., Cobbs injured pedestrian A 283P. 1115. a defective abutting property sidewаlk where the owner owes duty of maintenance and is declared liable in the event neglect, remedy against neglectful property has *29 City supra; v. owner: Caviness anno. 41 A. Vale, anyone Accordingly, injured upon L. R. 222. a defec- remedy only against tive in Portland has a sidewalk negligent against property the official but also the city engineer, if, after notice from the owner he failed repairs: City to make the needed v. Vale, Caviness supra; Municipal Corporations (2nd ed.), McQuillin, Accordingly, §§ pro- 2901 and 2916. while the charter remedy against vision under consideration withholds a city, recognizes negligent it in the of- right against abutting ficials and creates a of action property Thus, owner. v. demands Caviness supra, Vale, have been met. Here, then, sustaining validity another reason for exemption. plaintiff §
But the contends that Art. I, 10, Oregon prevents Constitution, the lawmakers from abol ishing any rights, commonlaw and that since the charter deprives injured, through clause those negligent failure of cities to maintain their streets, of right their common law of action the cities, is invalid. Plaintiff clause seems to believe that that point escaped of view attention in the consideration of previous (Laws our cases. The territorial statute 1853- pp. concerning against municipal 1854, 167-168, actions
249
part, depends
corporations) uрon
plaintiff, in
which the
Oregon
§
immune Art. XVIII,
7,
was not rendered
legislative
repeal:
from
modification or
Constitution,
Covey
Garage
(2d)
Portland,
v.
70 P.
566.
Or.
support
primary
contention,
her
largely upon
County,
relies
Eastman
Clackamas
supra,
dissenting opinion
and Justice Lord’s
in Tem
pleton
County, supra.
Linn
But
we
seen
language
previously quoted
which we
from Gearin
County, supra,
v. Marion
that Justice
Lord’s views
interpretation
County,
Eastman v.
Clackamas
supra, placed upon
§
represent
Art. I, 10, do not
construction of this court. In
Silver,
Silver v.
280U. S.
S.
L.
Ct.
Ed. 221, 65 A. L. R. 939, the
unnecessary
court said that it was
to “elaborate the
rule that the Constitution does not forbid the creation
rights,
of new
recognized
or the abolition of old ones
permissible
legislative
common law, to attain a
object.” We held to
sustaining
similar effect in
validity of a statute which was attacked under Art. I,
Oregon
§ 10,
Constitution: Perozzi v. Ganiere, 149 (2d)
40 P.
Oregon
1009.
I, 10,
Article
Constitu
*30
give anyone
tion, was not intended
right
a vested
statutory
the law either
or
nor
common;
was it in
tended to render
Notwithstanding
law static.
provisions
similar constitutional
in other
states,
courts have sustained statutes which eliminated the
husband’s common law
for the torts of his
placed
wife and which
the wife
an economic level
They
with her husband.
have likewise sustained statutes
which have abolished actions for alienation of affec
promise,
tions, actions for breach
legisla
etc. The
ture
remedy
cannot, however, abolish a
and at the same
recognize
right:
time
the existence of a
Stewart v.
Houk,
1236. infirmity exemption no in the charter clause. veals exemption contends that the charter nonsuability granting privilege of as it does the clause, Oregon city, § 5-502, to the is invalid because Code against municipal 1930, authorizes suits actions corporations corporate in their character. We observe injury rights adds “for an to the of a statute plaintiff arising from act commission.” some Of injury by plaintiff’s “some was not caused course, city. According act or commission” of the to the through city’s neglect; plaintiff, incurred it was through that is, Laws, its omission. But 1929 Session by substituting § ch. modified the 227, 2, statute word “commission” for the word “omission.” We eyes proceed. shall our to this circumstance close as we supra, Portland, As indicated in O’Harra v. was given containing its charter years legislature after clause two enacted the by p. after amendment which, statute Laws of 1887, 45, § and reamendment Session ch. Laws, 227, 2, Throughout legislative is now 5-502. its entire his tory following part words have remained ** * act: “An action be maintained * * * corporations public mentioned in sec * * * rights plain for an tions to the arising tiff from some act or omission of such other public corporation.” Some of the cases reviewed in preceding paragraphs part were maintained under that counterpart. of the act its common law Thus process legislative accretion, matter has been added, above-quoted language but the has never been altered exception with the of the substitution of the word “com mission” for the word “omission.” In the absence of
251 contrary, is a statute which a clear indication to the amendatory incorporated act, an without within phraseology, change in its takes substantial or material antiquity original enactment and is neither its from its being incorporated repealed nor deemed reenacted amendatory principle in the act. The is better stated in 56 P. McGinnis, 163, 108 132, State Or. quote:
we jurisdictions,
“Whatever the rule it other is settled in is this State that where a section of an act amended ‘so as to read sets law follows,’ and the later changes contemplated, parts
forth the incorporated old section that are in the new are not to having repealed be treated as re-enacted, but portions original are to be considered as statute, contrary, unless there is a clear declaration to the the absence of which it is only the additions that have original regarded been made to the sectiоn that are to be as a new enactment.” effect
See to like Brun v. 172 Md. Lazzell, 191 314, Atl. 109 A. L. R. 240, 1453; In Re Estate, Wilson’s (2d) Duggan 102 56 P. 178, 733, 105 Mont. A. L. R. 367; Ogden, 278Mass. N. E. 432, 180 82 A. L. R. 301, 765. amendatory Both the 1887and 1929 acts em ployed the “so words as to read as follows.” Accord ingly, statutory the above rule of construction controls part situation us, before and the of 5-502 above quoted therefore, deemed to have is, been in effect since 1862. it is older Therefore, than the Portland only charter clause. The latter is not more special it act. true, recent but It is as was indicated (2d) Portland v. Welch, 286, 59 P. A. L. R. Burton v. Gibbons, 148 Or. (2d) generally provisions 36 P. charter general present are amenable to statutes. inBut *32 special provision the Portland charter is instance adopted subsequently gen- the enactment which was to supra, Portland, eral statutes. O’Harra State Sturges, P. Bunn, 9 and Hall v. 52 Or. 97 (N. S.) L. R. authorize the conclu- A. exemption repeal the clause. sion that 5-502 did not disposes all The above attacks which made the clause. Even the writers bitterly of non- who have most assailed the doctrine firmly suability declare that it has become so entrenched jurisprudence through pro- in our charter statutes, oppo- and the decisions courts that its visions, legislature must resort to the rather than nents to the Virginia Certainly, courts. Law Rev. 910. See Oregon, repeatedly has where this court sustained exemption clauses, charter and where no conflict exists power and the we have Constitution, between them no disregard exemptions. to the We conclude that the exemption clause is valid. plaintiff, calling after attention to the fact trip which caused her
that the defect and fall inwas contends that curb, the sidewalk since the charter men only “any alley, tions sidewalks, street, avenue, lane, place” employ and does not court the word “curb”, applicable exemption clause not the in this If case. the part curb was not a sidewalk, we believe certainly part it was a was, that it of the street. This merit. contention is without It from the above that circuit follows court did city’s protected it held that the not err when charter city properly from this instance. It city’s sustained the motion for a nonsuit. far we have referred to
So as the defendant, although city’s when the action was instituted the together mayor with commissioners, and four adjacent engineer also were lot, and the owner of rulings plain- After some adverse to defendants. complaint amended a third made, tiff had been only city. Then filed named as the defendant reply. plaintiff and the filed its answer the latter “against Eventually proceeded trial the cause quoted Portland alone.” We defendant adversely plaintiff’s After trial had rеsulted brief. entitling her the notice of counsel, appeal papers, and similar inserted names all of original exception defendants with the of the name *33 adjacent property Upon city’s motion owner. the plaintiff these names were stricken. The us now asks to all review of the intermediate orders. plaintiff pursued
We believe that the has not the proper challenge regularity course to entitle her to of the intermediate orders. When she filed the third complaint amended which eliminated as defendants all except city, doing regarded her act in so must be having voluntary; thereupon previous all of her pleadings perform any ceased to further function as pleading following language in the case. The in Wells Applegate, many 12 6 P. has been 770, times approval: cited with part
“A of the second amended answer was struck out on motion, and a demurrer was sustained to another part setting up filed another answer thereupon a counter-claim. Defendant purporting a to be new answer, argued but which it is such, now is not because it was copy parts objected a but of the former answer with the out; left and even if it were a new answer, it is argued sustaining exceptions striking to the order out and in Suppose the demurrer was not waived. purports answer to be what it to be—a new answer. Then the is, rule when a demurrer overruled and is
25é
party pleads abandoned, the demurrer and it over, is part (Yonng Martin, ceases to be a of the record. 357.) pleading So, amended, Wall. ‘when original pleading part record, ceased to be be party having power, pleading cause the to make the has elected * * * change.’ Taking a bill of ex party (Plummer ceptions v. pleads aid a if he over. will not 589,) 4 Iowa Then is the answer a new Roads, pleading of an answer? The act of over is conclusive (And intention to abandon the former answer. see eg. 102) pleadings p. which Laws Or the the on pleadings parties went to trial became the sole By filing as if no others ever existed. case, the new the former withdrawn, answer and nied it.” answer was effect relating accompa all motions and demurrers to it Thompson, In Slemmons v. 23 Or. 31 P. plaintiff’s petition for a writ of mandamus made a return and defendant later the filed reply. plaintiff, Then occurred. a trial Later the pursuant petition leave, filed an amended and writ up set a different set of facts. To the amended pleading the defendant’s demurrer was sustained and giving judgment later writ, the court dismissed the plaintiff. judgment plain- From this making appealed, part original tiff as a of the record proceedings. disposing matter, the decision *34 stated: “Ordinarily, pleading when amended, is
original pleading
part
ceases to be a
of the record, be
party pleading, having
power,
cause the
has elected
change:
Applegate,
to make the
Wells
It follows the above circuit court sustained. C. J., Bean
Band, Kelly, Belt, Lusk, Bailey, JJ., concur.