Worden v. Witt, 39 P. 1114

Worden v. Witt

39 P. 1114

Idaho

1895

Check Treatment

HUSTON, J.

Plaintiff sued defendants, as commissioners «of Idaho county, for injuries alleged tо have been sustained by him through defects in a certain bridge in said county, while passing across the same. A general demurrer was interposed to the complaint, which was sustained by the court, and leave given plaintiff to amеnd, which was done. By agreement of (counsel, the title of the case was ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍changed, in the summons and ■complaint, by striking out the words “Commissioners of Idaho Cоunty.” The case was tried to a jury,, and after the evidence -on the part of the plaintiff was submitted, on motion of (defendants, the action was dismissed, and judgment entered for defendants for costs, from which judgment, and the order denying motion for new trial, this appeal is taken.

'The only question presented by thе transcript is the liability of the county commissioners, individually, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for the damages claimed to have been sustained by plaintiff on account of the defеctive bridge.

The first error assigned is the sustaining of the demurrer to the complaint. We think there was no error in this action of the court. It is evident from the reсord that the ground upon which the court sustained the demurrer to the complaint was the want of a statement of notice to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the defendants of thе con.dition of the bridge, as the amended complaint, to which a .genеral demurrer was interposed, and overruled by the court, ■only differs from the оriginal in containing such statement of .notice to and knowledge of the сondition of the bridge by defendants.

The appellant, in his brief, submits two questions for the decision of the court: 1. Is the county liable to the plaintiff? .and 2. Are the commissioners liable individually? The first .question is not raised by the record. There was nо action .against the county. As to the second ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍question, the law can hardly be said to be conclusively settled, or, at least, the decisions are not entirely harmonious. Judge Cooley, in his work ■on Torts (page 379), says: “The rule of official responsibility, ■Uip.n, appears to be this: That, if the duty which the offiсial *407authority imposes upon an officer is a duty to the public, a failurе to perform it, or an inadequate or erroneous performanсe, must be a public, not an individual, injury, and must be redressed, if at all, in some form of рublic prosecution. On the other hand, if the duty is a duty to the individual, then a negleсt to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages.” In applying this rule to the case of officers charged with the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍duty of making and repairing highways and bridges, the courts seem to be influenced largely by the exigencies of the case presented, or the conditions under which it arises, as, for instance, in the older and more thickly populated states there seems to be a growing' dispоsition, both by legislative action and judicial decisions, to hold this class of оfficers, as well as the municipalities they represent, to a more enlarged liability. This will be made apparent by comparing the case оf Bartlett v. Crozier, 17 Johns. 439, 8 Am. Dec. 428, and note, with Hover v. Barkhoof, 44 N Y. 113, and other recent decisions. But this change of base has not been recognized in states where entirely different conditions exist. To hold counties or county ■commissioners liable for all injuries arising from defective highways, in this country, would result in two very undesirable conclusions — the literal abrogation of the office of county commissioners (for no sane man would assume thе position, with such a liability attached), and the bankruptcy of every county in the state. Had there been any intention on the part -of the legislature to impose such a liability upon the county commissioners, they would havе said so, by unequivocal enactment. The supreme court of Idaho, in Gorman v. Commissioners, 1 Idaho, 655, settled the question of the liability of both the county and the county commissioners in this jurisdiction, and with that decision we concur. The judgment of the ■district court is affirmed, with costs.

Morgan, C. J., and Sullivan, J., concur.