146 P. 822 | Or. | 1915
Lead Opinion
“The question as to the sufficiency or insufficiency of the evidence to justify the findings raises a plain issue of fact, and is properly determined on a new trial motion. It is otherwise, however, as to the insufficiency of the evidence to justify the judgment. Upon the same principle — viz., that a new trial is a re-examination of an issue of fact — it has been held that errors in rulings upon demurrers to pleadings cannot be reviewed on motion for new trial. It is manifest that this is a correct application of the principle; for, if final judgment is given upon the demurrer for either plaintiff or defendant, there would be no issue of fact, in the case”: Hayne, New Trial and Appeal (Rev. ed.), i 1.
It will be remembered that the demurrer herein challenged the sufficiency of only one ground of defense, thereby leaving for trial an issue of fact with respect to the second defense.
In 14 Ency. PI. & Pr. 718, in speaking of the statutory grounds for a new trial, it is said:
“In the various Codes and practice acts attempts have been made to enumerate' and briefly state the grounds for new trial. Such enumeration does not restrict the inherent power of courts to relieve a party where justice has not been done, or to grant new trials for any other sufficient causes not enumerated, unless the restriction is express.”
“Every man shall have remedy by due course of law for injury done him in his person, property or reputation” : Article I, Section 10, of the Constitution of Oregon.
“The City of Eugene shall not in any event he liable in damages to any person for an injury caused by any defect or dangerous place at or in any sidewalk, crosswalk, street, alley, bridge, public grounds, public buildings, or ditch, unless the mayor, chairman of the street committee, or street commissioner shall have had actual notice of such defect or dangerous place, and a reasonable time thereafter in which to repair or remove such defect or dangerous place before the happening of such accident or injury, and in no case shall more than $100 be recovered as damages, from the city for any such accident or injury.”
Upon considering the demurrer the trial court was of the opinion that the language last quoted trenched upon the clause of the fundamental law referred to. When, however, the motion for a new trial was interposed, the court, having carefully examined the charter and discovered that its provisions did not exempt any officer of the city from liability for damages from an injury resulting from negligence in failing to keep a sidewalk in repair, set aside the judgment. In Mattson v. Astoria, 39 Or. 577 (65 Pac. 1066, 87 Am. St. Rep. 687), the charter provided that:
“Neither the city nor any member of the council thereof shall in any manner be held liable for any damages resulting from a defective condition of any street, alley, or highway thereof.”
And it was held that such clause was repugnant to Section 10 of Article I of the original act of the state. In Batdorff v. Oregon City, 53 Or. 402 (100 Pac. 937, 18 Ann. Cas. 287), a clause of the charter exempted Oregon City from liability for loss occasioned by accident on account of the condition of any street, but not exonerating any officer for a casualty caused by the willful neglect or gross negligence of such officer,
By Section 48 of the charter of the City of Eugene authority is conferred upon the common council to levy, assess and collect taxes upon all nonexempt property (subdivision 1); to appropriate for any item of city expenditure, and provide for the payment of the expenses of the city (subdivision 40); to prevent and remove all obstructions from the streets, alleys, crosswalks, sidewalks, public parks, and other public places, and to repair and clear the same at the expense of the property fronting on such improvement, or of the city (subdivision 51). The common council is also empowered to improve or repair any street or alley, or any part thereof: Section 50.
In Batdorff v. Oregon City, 53 Or. 402 (100 Pac. 937, 18 Ann. Cas. 287), it is said:
“Though there is a conflict of judicial utterance as to the common-law liability of a city for a failure to keep a street in repair, the weight of authority supports the principle that, when a charter invests a municipal corporation with exclusive control over the streets within its limits, and authorizes it to employ the means necessary to improve and maintain such highways, a duty to the public arises by implication of law to keep the streets that have been opened for travel in a reasonably safe condition; and for any injury that may result from a failure to discharge such obligation the city, without any statutory provision to that effect, must respond in damages. ’ ’
In addition to the authorities there cited, see, also, the notes to the cases of Browning v. City of Springfield, 17 Ill. 143 (63 Am. Dec. 345), Goddard v. Inhabitants of Harpswell, 84 Me. 499 (24 Atl. 958, 30 Am. St.
To recover for a loss occasioned by official dereliction of duty, not involving more than $100, an action may be maintained against the defendant herein. If, however, the amount of injury caused by the negligence of the defendant or its agents exceeds that sum, an action may be maintained against the officers of the municipality whose duty it was to cause the street to be repaired, and to see that the highway was kept in suitable condition for public travel. Since such a remedy is availing, the section of the charter referred to does not violate the clause of the fundamental law of the state.
No error was committed in setting aside the judgment and granting a new trial, and the order to that effect is affirmed. Aeeirmed.
Rehearing
Rehearing denied April 20, 1915.
On Petition for Rehearing.
(147 Pac. 768.)
The Circuit Court having been affirmed in setting aside the judgment rendered therein and granting a new trial, the appellant files in this court a petition for rehearing. Upon the hearing of said application the rehearing was denied and the former opinion sustained.
Rehearing Denied.
Messrs. Skipworth & Lewis, for the respondent.
Department 1. Opinion by
The ease relied upon to support the principle asserted is Nowell v. Wright, 3 Allen (Mass.), 166 (80 Am. Dec. 62), which was an action to recover damages sustained by the plaintiff’s wife by falling into a river at night, in consequence of the negligence of the defendant, a bridge-tender, who, while operating the draw of the span, failed to shut the gates thereat or to hang out lanterns as warnings of danger. The court, having found that the appointment of the keeper of the bridge was not honorary, nor that his services were gratuitous, determined that, as a public officer, he was responsible for his acts of misfeasance, on the ground that his labor was voluntary and attended with compensation, and his duty was entire, absolute,
“¥e are of opinion that the principle which underlies the rule that public officers and other agencies of government are not liable for negligence in the performance of public duties goes no further than to relieve them from liability for nonfeasance and for the misfeasance of their servants or agents. For a personal act of misfeasance, we are of opinion that a party should be held liable to one injured by it, as well when in the performance of a public duty as when otherwise engaged. We think that the general course of decisions in this commonwealth is not in conflict with this view. But, for acts of misfeasance of a servant or agent in such cases, there is no liability. This is because the rule respondeat superior does not apply.”
In Bartlett v. Crozier, 17 Johns. (N. Y.) 439, 450 (8 Am. Dec. 428), it was held that a civil action would not lie against an overseer of highways by an individual who had sustained an injury in consequence of the negligence of such officer in failing to keep a
“When the laws render a public officer liable to special damages for neglect of duty, the cases are those in which the services of the officer are not uncompensated or coerced, but voluntary and attended with compensation, and where the duty to be performed is entire, absolute, and perfect.”
The case last mentioned is referred to in Adsit v. Brady, 4 Hill (N. Y.), 630, 632 (40 Am. Dec. 305), where it is said:
“When an individual sustains an injury by the misfeasance or nonfeasance of a public officer, who acts or omits to act contrary to his duty, the law gives redress to the injured party by an action adapted to the nature of the case.”
In Robinson v. Chamberlain, 34 N. Y. 389, 396 (90 Am. Dec. 713), it was ruled that a contractor who, pursuant to law, had been employed by the state and received a compensation for performing a public duty, was liable to any person sustaining special damage in consequence of his failure to discharge such obligation.
The case of Piercy v. Averill, 37 Hun (N. Y.), 360, was an action against the mayor and aldermen of the City of Ogdensburg, New York, to recover damages for a personal injury resulting from the defendant’s failure to cause snow and ice to be removed from a sidewalk, whereby the plaintiff slipped, fell, and was hurt. A demurrer to the complaint having been overruled, an interlocutory judgment was rendered, in reversing which it was said:
“The general rule in this state is that public officers, charged with a ministerial duty, are answerable in damages to anyone specially injured by their careless*332 ness and negligent performance of, or an omission to perform the duties of, their office. ’ ’
Further in the opinion it is observed:
“The defendants again urge that they are not liable for a neglect of their duty, because by the city charter the city is declared not to be liable for any injury caused by a sidewalk being out of repair, or by slipping upon snow or ice thereon. They argue that, if the principal is not liable, they [the agents], are not. It is hardly accurate to say that the city and the common council stand merely in the relation of principal and agent. * * But, if we adopt the view that the common council are the agents of the city, still there is no reason why an agent should not suffer for damages occasioned by his wrongful act, even though his principal be not liable. If a statute should relieve a- railroad company from any liability for the wrongful act of its servants, there would be no reason why the servants should not continue liable for their own wrongful acts. If the doctrine of respondeat superior were abolished, the doctrine that he who does an injury should pay the damages he has caused would be unaffected. ”
It is also remarked:
“A further argument is that public policy should forbid us to hold the defendants liable, inasmuch as such a rule of liability would drive from the common council persons of ¡responsibility. "Wie cannot give much weight to this argument. The defendants say we ought to be allowed to accept office and knowingly to neglect our duties, without any liability to those whose limbs are broken through our negligence, because no responsible persons will accept office, except on the condition that they may neglect its duties with impunity. It is enough to say in reply to this that it is better to have irresponsible officers who attend to their duties than responsible officers who do not.”
If the payment of compensation to a public officer for a performance of the duties required of him is to determine the question of liability for his negligence, then the amount of his salary is immaterial, so that, if he annually received a nominal sum only, his responsibility would be the same as if he were well paid for his services. The mere statement of such inequitable consequences that would necessarily result from the case supposed conclusively illustrates the absurdity of the doctrine maintained. If the mayor and the councilmen have funds or the authority to procure them, and, neglecting their duty, make no effort to obtain such means, they are liable in failing to repair a street, if they had notice of the defect: Bates v. Horner, 65 Vt. 471 (27 Atl. 134, 22 L. R. A. 824).
In Grant v. Baker, 12 Or. 329 (7 Pac. 318), it was held that an action would lie against such officers to recover damages resulting from personal injury alleged to have been caused by their failure to keep a street in repair, though nothing was said in the opinion with respect to any compensation having, been paid to the councilmen.
The mayor and councilmen of the City of Eugene are not parties hereto, and anything said or intimated in this opinion will not conclude them from controverting their liability for the damages sustained by the
. The former opinion is therefore adhered to and a rehearing denied.
Rehearing Denied. Former Opinion Sustained.
Rehearing
Denied May 18, 1915.
Second Petition for Rehearing.
This is a second application and petition for a rehearing herein. The reason for denying this petition is set forth in the opinion of the court.
Second Petition for Rehearing Denied.
Mr. L. M. Travis and Mr. A. K. Meck, for appellant and for petition.
Messrs. Skipworth & Lewis and Mr. O. H. Foster, for respondent and against petition.
Department 1. Opinion by
In a second petition for rehearing, judgment for $100, the limit of a recovery against the municipality, is demanded, together with the costs and disbursements incurred at the trial and on the appeal. Had the request been made when the motion to set aside the judgment and grant a new trial was interposed,
This application comes too late, and for that reason is denied.
Second Petition eos Rehearing Denied.
Denied September 14, 1915.
Petition to Recall Mandate.
(151 Pac. 474.)
The order and judgment of the lower court setting aside the verdict of the jury for $2,000 in favor of plaintiff, and granting a new trial, was affirmed on appeal, and plaintiff now moves to recall the mandate heretofore issued and for an order directing judgment to be entered on the verdict in her favor.
Petition Denied.
Mr. L. M. Travis and Mr. A. K. Meck, for appellant and for the petition.
Messrs. Skipworth & Lewis and Mr. O. H. Foster, for respondent and against the petition.
In Newsom v. Greenwood, 4 Or. 119, it was held tbat an enactment repealing or modifying tbe remedy of a party should not be so construed as to affect actions or suits brought before tbe repeal or modifica
The petition should be denied, and it is so ordered.
Petition Denied.