Batdorff v. Oregon City

• Decision Date: 06 April 1909
• Citation: 100 P. 937,53 Or. 402
• Parties: BATDORFF v. OREGON CITY et al.
• Court: Oregon Supreme Court

100 P. 937

53 Or. 402

BATDORFF v. OREGON CITY et al.

Supreme Court of Oregon

April 6, 1909

Appeal from Circuit Court, Clackamas County; Thomas A. McBride Judge.

Action by Clara Batdorff against Oregon City and others. From a judgment for plaintiff against defendant city, it appeals and, from the part of the judgment in favor of defendants A Knapp and others, plaintiff appeals. Affirmed.

J.U. Campbell, for appellant.

C.D. Latourette, for respondents.

MOORE C.J.

This is an action against a municipal corporation and its councilmen to recover damages for a personal injury, alleged to have been caused by the willful and gross negligence of the defendants in failing to keep in repair a sidewalk constructed along one of the public streets of Oregon City. The cause being at issue was tried, and a verdict for $850 was returned against the city, but the councilmen were exonerated from liability. From a judgment rendered on the verdict the city appeals. The plaintiff also appeals from that part of the judgment which releases the codefendants from accountability.

These appeals will be treated together, as they involve a construction of section 128 of the municipal charter, which is as follows: "Oregon City is not liable to any one for any loss or injury to person or property growing out of any casualty or accident happening to such person or property on account of the condition of any street or public ground therein; but this action does not exonerate any officer of Oregon City or any other person from such liability, when such casualty or accident is caused by the willful neglect of any duty enjoined upon such officer or person by law, or by the gross negligence or willful misconduct of such officer or person in any other respect." Sp.Laws Or.1895, p. 518. It is contended by plaintiff's counsel that in referring to the language quoted the court erroneously made the following observation in the hearing of the jury, to wit: "I don't believe that this clause in the charter of Oregon City exempting the city from damages for negligence and allowing a recovery only against the councilmen for gross or willful negligence is constitutional. I don't think the Legislature can take away plaintiff's common-law remedy against the city for ordinary negligence, and substitute for that a partial remedy against the councilmen for gross or willful negligence. It attempts to take away a complete remedy and substitute therefor a partial and emasculated remedy. This is unconstitutional and wrong." An exception having been taken to this remark, it is argued that, though the utterance was a correct interpretation of the section of the charter, when construed in connection with a clause of the organic act which provides that "every man shall have remedy by due course of law for injury done in person, property, or reputation" (Const. art. 1, § 10), the comment prejudiced the plaintiff's right, and was tantamount to an instruction to the jury to return a verdict in favor of the councilmen.

It is maintained by counsel for the city, however, that section 128 of the charter is not violative of the fundamental law to which reference is made, that the clause of the municipal act quoted constitutes a bar to any action against the city for a personal injury caused by the negligence of its officers, and that an error was committed in overruling a demurrer invoking such exemption, on the ground that the complaint did not state facts sufficient to constitute a cause of action, which defect in the plaintiff's primary pleading was not waived by answering over. 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. Cooley's Const. Lim. (7th Ed.) 356; Elliott, Roads & Streets (2d Ed.) § 611; Jones, Neg.Mun.Corp. § 53; 15 Am. & Eng.Ency.Law (2d Ed.) 420; 28 Cyc. 1341; Farquar v. Roseburg, 18 Or. 271, 22 P. 1103, 17 Am.St.Rep. 732; Greensboro v. McGibbony, 93 Ga. 672, 20 S.E. 37. Our statute re-enacts this rule of the common law, and authorizes the maintenance of an action against any city in its corporate capacity for an injury to the rights of a party arising from some act or omission of the municipality.

B. & C. Comp. § 360; Wagner v. Portland, 40 Or. 389, 60 P. 985, 67 P. 300. In order to avoid the effect of such enactment and to escape the common-law liability which is usually implied from the neglect of officers properly to discharge a duty devolving upon a city, charters have been granted which attempted to exonerate such municipalities from accountability for personal injuries resulting from a failure to keep an opened highway in a suitable condition for travel. Sheridan v. Salem, 14 Or. 328, 12 P. 925.

In O'Harra v. Portland, 3 Or. 525, it was rule that section 127 of the charter of the defendant, then in force exempted the municipality from liability for a personal injury resulting from the defective condition of any street or sidewalk. The clause of the grant of power so construed is almost identical with the section of the Oregon City charter now under consideration, and provided that the exemption of the city of Portland from accountability did not exonerate any of its officers or other person from liability "when such casualty or accident is caused by the willful neglect of a duty enjoined upon such officer or person by law, or by the gross negligence or willful misconduct of such officer or person in any other respect." Sp.Laws Or.1864, p. 26. In that case it was insisted that the clause of the charter exempting the city from liability violated the following provision of the organic act: "No *** law impairing the obligation of contract shall ever be passed." Const.Or. art. 1, § 21. It was held, however, that the doctrine so maintained was inapplicable. No reference seems to have been made to that part of the charter of Portland which rendered its officers liable only for gross negligence or willful misconduct. In an action against the board of trustees of the city of East Portland to recover damages for a...