88 Neb. 503 | Neb. | 1911
Lead Opinion
From a judgment of the district court for Pawnee county in favor of plaintiffs for damages in the loss of a mule by reason of the dangerous condition of a bridge upon a public highway in defendant county, defendant appeals.
The damage complained of was sustained March 3,1906. On the 28th of the same month plaintiffs filed a claim for damages with the county clerk of defendant county, asking the county board to .approve and allow the same. On June 12 the board rejected the claim, and on the 27th of the same month plaintiffs gave notice of appeal and filed an appeal bond with the county clerk. Thereafter plaintiffs filed their petition in the district court. This petition was first assailed by a motion to strike the petition from the files and dismiss the action upon the ground that
The main contention urged is that the action of the plaintiffs is one sounding in tort, and not one arising upon an express or implied contract. It is argued by defendant that “before a claimant for damages, alleged to have been sustained by the negligence, carelessness or wrong-doing of a board of county commissioners, can secure relief, he must first establish his claim, then it would become the duty of the county board to cause a warrant to issue in settlement thereof.” By section 22, art. I, ch. 18, Comp. St. 1909, the powers of a county are defined:
Berryman v. Schalander, 85 Neb. 281, involved the power of the county board to allow the county attorney, who was a salaried officer, his necessary traveling expenses in going to different parts of the county to attend preliminary examinations of persons charged with criminal offenses. By thus avoiding the large expenditure in sheriff’s and witnesses’ fees, which would have resulted had such offenders and witnesses been brought to the county seat for such preliminary examination, a considerable sum was saved annually to the county. After quoting with approval from Lancaster County v. Green, 54 Neb. 103, we held: “A county board or board of county commissioners are clothed not only with the powers expressly conferred upon them by statute, but they also possess such powers as are requisite to enable them to discharge the official duties devolved upon them by law.” In the opinion we said: “Did the board have the power to pay the necessary expenses of the county attorney incurred while prosecuting the business of his office in a manner which was saving to the county large sums of money each year? To hold that it did not have such power would not only be a strained construction of the statute, but would, we think, be against public policy.” In like manner we think that to hold that the county board, when a claim for damages, resulting from the county’s negligence in not keeping in reasonably safe condition for travel one of its bridges, has been filed with the board and the board is satisfied that the claim is reasonable and just, must decline to pay such claim until it has been established in court, and a large sum for costs added thereto, “would not only be a strained construction of the statute, but would, we think, be against public policy.”
Counsel for defendant cites Douglas County v. Taylor, 50 Neb. 535, and that case cites Nance v. Falls City, 16 Neb. 85; Village of Ponca v. Crawford, 18 Neb. 551; and Hollingsworth v. Saunders County, 36 Neb. 141. Douglas County v. Taylor was an action by the owner of land abutting upon a public highway, one-lialf of which was in the city and the other half outside of the limits of the city, for damages occasioned by a cut and fill which the county made and constructed in the highway in front of his property. In the syllabus it is held: “That no legislative enactment was necessary to enable Taylor to maintain his action; that the district court had original jurisdiction to try the claim of Taylor against the county; that it was not a claim required by section 37, art. I, ch. 18, Comp. St., to be filed with the county clerk of said Douglas county and passed upon by its board of commissioners; the word ‘claims’ in said section 37 has reference only to claims originating in contract, express or implied, between the claimant and the county.” This holding of the syllabus would appear to be in conflict with the holding in Richardson County v. Hull, supra, but in the opinion, on page 545, it is said: “We think that the word ‘claims’ in that section refers only to claims originating in contract, express or implied, between the claimant and the county, and that a claim against a county for damages caused to the claimant’s property by the county’s taking it for public use, or damaging it by the construction of a public improvement, is not such a claim' as need be first filed with the county clerk and passed upon by the county authorities; but an action on such a claim may be brought, in the first instance, in any court having jurisdiction of the subject matter.” It seems to us that this was. what the court in that case meant to decide, viz.,
Prior to the decision in Douglas County v. Taylor, the court, consisting of the same judges who decided Richardson County v. Hull, decided the case of Nance v. Falls City, 16 Neb. 85, and in that case followed the decision of the supreme court of Wisconsin in Bradley v. City of Eau Claire, 56 Wis. 168; Ruggles v. City of Fond du Lac, 53 Wis. 436, and Kelley v. City of Madison, 43 Wis. 638, and held that “the word ‘claims’ in section 80 of the chapter relating to cities of the second class applies alone to those arising upon contract, and not upon tort.” In Village of Ponca v. Crawford, 18 Neb., 551, another member of the court, as it was composed when Richardson County v. Hull was decided, cited Nance v. Falls City, supra, without any discussion of the question. When these three eminent judges came to carefully consider the Wisconsin cases again, in Richardson County v. Hull, they disapproved all three of the cases cited and followed in Nance v. Falls City, and also repudiated Nance v. Falls City, and likewise repudiated a similar holding in the last paragraph of the syllabus in Kaeiser v. Nuckolls County, 14 Neb. 277. It is subsequently stated, in Hollingsworth v. Saunders County, 36 Neb. 141, 146, that the language used in Richardson County v. Hull “is merely obiter dicta.” In that statement we think the learned judge who wrote the opinion was in error, as the decision in Richardson County v. Hull turns squarely upon the proposition that the provision in our statute giving a county board power to “settle all accounts against the county, and all accounts concerning the receipts and expenditures of the county,” was broad enough to include “the claim or demand of a citizen
The requirement of the statute (Comp. St. 1909, ch. 78, sec. 117) that, in asserting a claim against a county for damages by reason of a defective bridge, said action
Upon a careful reconsideration of the question, and of the cases cited, we hold that an action upon a claim for a tort or for unliquidated damages may be commenced in a court of competent jurisdiction, or by filing a claim with the county board, at the election of the claimant; and that, if the latter course is pursued and the claim is rejected by the board, the claimant may appeal from the action of the board to the district court, and in such case his action will be deemed to have been commenced upon the date of the filing of his claim with such board.
It is next contended that the court erred in giving instruction No. 2, requested by plaintiffs. The objection urged against this instruction is that it ignores the question of knowledge or of notice to the county board, either actual or constructive, of the dangerous condition of the bridge. This contention must fail. That the bridge was a public bridge is established without contradiction, and the question of knowledge of or notice to the defendant of its dangerous condition for many months prior to March 3 was not, under the evidence, an open question. The witness Cox testified that he was a rural mail carrier, that his usual route required him to cross that bridge every 24 hours; that the bridge was really dangerous as early as December of the preceding year; that he had given the road overseer of that district both verbal and
Defendant’s next complaint is that the court erred in refusing to give instructions 1 and 8, requested by defendant. This contention is disposed of adversely to defendant by our holding under the first subdivision of this opinion. It is next contended that the evidence clearly shows contributory negligence on the part of plaintiffs’ agent in driving across the bridge in its dangerous condition, which must have been apparent to the agent; and it is argued that although plaintiffs’ agent might have felt that he could drive his team across the bridge with safety, by reason of the fact that his horses would not come in contact with the hole in the middle of the bridge, the mule, -which was being led behind, and which was the animal injured, might be traveling in the middle of the road and be in danger of getting into the hole. By their ver
Upon careful examination of the entire record, we fail to find any prejudicial error. The judgment of the district court is therefore
Affirmed.
Dissenting Opinion
dissenting.
The act under which this action is brought is limited in its scope. Prior to its enactment no liability existed against counties for damages caused by defective bridges. The law created a new right of action and imposed a limitation of time in which an action could be brought to enforce it. The passage of the act had the effect to make counties liable to actions for damages for 30 days after the injuries were caused^ but this period terminated the liability if no action had been begun.
In an opinion by Sanborn, C. J., in Madden v. Lancaster County, 65 Fed. 188, it is said: “But the proviso in the act that suits shall he brought upon the rights of action it creates within 30 days from the occurring of the injuries, respectively, is a condition qualifying the rights of action, and not a mere-limitation of the remedy. Theroux v. Northern P. R. Co., 64 Fed. 84; The Harrisburg, 119 U. S. 199; Pittsburg, C. & St. L. R. Co. v. Hine, 25 Ohio St. 629.” This is the rule of this court. Bryant v. Dakota County, 53 Neb. 755; Swaney v. Gage County, 64 Neb. 627. In the latter case it is said by Barnes, J.: “A suit based on that act which is commenced more than 30 days after the injuries complained of occurred cannot be maintained.” The majority opinion holds that the filing of a claim before the board of county commissioners (a proceeding which we have heretofore held to be unnecessary, Hollingsworth v. Saunders County, 36 Neb. 141) complies with the requirement of the statute, and is equivalent to the commencement of an action. The words
I can find no authority anywhere to sustain the proposition that the needless filing of a claim in a matter where an adverse decision could have no finality as to the right of the claimant against the county is the beginning of an action. The legislature granted the relief upon the condition that an “action” should be begun within 30 days, and I think this court has no right to say that the word action in this statute has other than its ordinary meaning.
In my judgment the petition does not state a cause of action. This was the view taken by the federal court in Madden v. Lancaster County, supra, and by this court in the cases cited.
I think the judgment of the district court should be reversed and the cause dismissed.