Campbell v. City of Helena

• Decision Date: 20 July 1932
• Docket Number: 6975.
• Parties: CAMPBELL v. CITY OF HELENA.
• Court: Montana Supreme Court

16 P.2d 1

92 Mont. 366

CAMPBELL v. CITY OF HELENA.

No. 6975.

Supreme Court of Montana

July 20, 1932

Rehearing Denied Nov. 15, 1932.

Appeal from District Court, Lewis and Clark County; A. J. Horsky Judge.

Action by Edwin J. Campbell against the City of Helena. From a judgment dismissing the action, plaintiff appeals.

Reversed and remanded.

MEIGS District Judge, dissenting.

E. G Toomey and R. Lee Word, both of Helena, for appellant.

Raymond T. Nagle, Gunn, Rasch, Hall & Gunn, and Wm. B. Jones, all of Helena, for respondent.

PER CURIAM.

The plaintiff, Edwin J. Campbell, brought action to recover damages suffered as the result of drinking contaminated water furnished by the city of Helena, and from which he contracted typhoid fever.

His complaint alleges that the city owns, maintains, operates and controls a water supply and system in its corporate capacity from which it furnishes water for drinking and domestic purposes on a rental basis, and so furnished water to the place where this plaintiff resides during the period covered by the allegations. It is then alleged that, in the summer of 1929, through the negligence of the defendant, its officers, agents, and employees, the water became contaminated, and that for a period of at least four weeks prior to the time when plaintiff became infected, the defendant had knowledge that the water it was furnishing him was germ-laden and unfit for human consumption, yet negligently failed to remedy the situation or warn plaintiff not to drink the water; that he did drink of the water at his place of residence on the 13th day of September, 1929, and thereby contracted typhoid fever from which he was seriously ill and confined to a hospital for a period of three weeks, to his damage in the sum of $10,000.

The defendant moved to strike certain portions of the complaint, which motion was overruled, and then answered, admitting that it owned and operated the water system, but denying that it did so in its corporate capacity, and denying that it has control over the water supply. It further denied that it had any notice or knowledge that the water was contaminated prior to September 16, 1929. The answer set up two special defenses; the first being that the duty to determine the condition of the water was transferred by statute to the state board of health and its subordinates, the county and city health officers, who had knowledge of the condition for some time prior to September 13, but failed to notify the city, and, second, that the plaintiff was not entitled to maintain his action by reason of the fact that he had not given written notice of his injury to the city as required by law.

The plaintiff moved to strike the special defenses from the answer, which motion was denied, and then demurred to the answer; the demurrer was overruled, and plaintiff given ten days in which to further plead; he refused to plead further, and thereupon defendant moved for judgment on the pleadings on the ground that each special defense constituted a complete defense to the cause of action pleaded. This motion was sustained, and judgment of dismissal entered. The plaintiff has appealed from the judgment.

Three questions are presented for determination: First. In operating a municipally owned water supply and system, does the city act in its governmental or in its proprietary capacity? Second. Do the laws creating a state board of health and subordinate county and city health departments take the control of water systems out of the hands of the city so as to relieve it of the duty of maintaining a pure supply of water? Third. Does the law require one injured in the manner plaintiff alleges he was injured to give notice to the city as a condition precedent to the maintenance of an action for damages?

1. A city is not required to furnish water to its inhabitants, but it is authorized to do so, if a majority of the taxpayers "affected thereby," on submission, shall authorize the city to enter upon this commercial enterprise. Subdivision 64, § 5039, Rev. Codes 1921. For many years the city of Helena has owned and controlled its waterworks, and, as far back as 1897, this court declared that "in the ownership and control of that water system, the city acts in its proprietary character, as distinguished from its governmental capacity. Helena Consolidated Water Co. v. Steele, 20 Mont. 1, 49 P. 382, 37 L. R. A. 412." Public Service Com'n v. City of Helena, 52 Mont. 527, 159 P. 24, 25. Again, in 1915, this court declared: "The powers granted to a municipality are to be distinguished into two classes--the first including those which are legislative, public, or governmental, and import sovereignty; the second those which are proprietary or quasi private, conferred for the private advantage of the inhabitants and of the city itself as a legal person," and "when a city is engaged in operating a municipal plant under an authority granted by the general law, it acts in a proprietary or business capacity. In this behalf it stands upon the same footing as a private individual or a business corporation similarly situated." Milligan v. City of Miles City, 51 Mont. 374, 153 P. 276, 278, L. R. A. 1916C, 395. This distinction is reiterated and the foregoing decisions are cited with approval in Public Service Commission v. City of Helena, 52 Mont. 527, 159 P. 24, and we now have no inclination to depart from a principle so long and firmly established.

2. The defendant may be said to admit the correctness of the foregoing statement of the law, but it contends that in the protection of the public health the city acts in its governmental capacity, which governmental function is, by law, imposed upon the state board of health and its subordinates, the county and city health officers.

A careful reading of the statutory provisions respecting the powers and duties of the state board of health (sections 2641-2657, Rev. Codes 1921), and of their subordinates, the county and city health officers (sections 2464-2502, Id.), discloses that, for the protection of the public health, these officials are given "general oversight and care" of the sources of all water supplies for domestic use and of the installation of water systems and sewer systems as affecting such supplies, and are commanded to consult with and advise the city authorities in such matters. It has supervisory control over the subordinate health officials, and may promulgate rules and regulations, and the health officers are authorized to investigate, on complaint, alleged nuisances tending to pollute water supply sources and prohibit the continuance thereof.

This board has general supervision over the "interests and health of the citizens of the state," and may appoint local health officers if the local authorities fail to do so. The local health officer is authorized to make sanitary inspection whenever and wherever he has reason to suspect that anything exists that may be detrimental to the public health, and, under rules promulgated by the state board, he shall investigate "suspicion" of the existence of such a condition, and shall investigate premises on which cases of typhoid fever exist and take necessary steps to prevent spread of disease and prevent the use of water which may be a probable source of infection, and abate nuisances affecting water used for human consumption.

But all of the powers, duties, and authority vested in these officers pertain with the same force when a water system is owned, controlled, and operated by a private person or corporation as when it is municipally owned, controlled, and operated.

If, then, the reposing of power in the health officers to protect the public health in the manner designated relieves a city of liability for negligently and knowingly furnishing polluted water to its customers, all private enterprises performing a like service are likewise relieved. This cannot be. The city furnishes water to its inhabitants in its private corporate capacity, and it stands exactly in the shoes of the old Helena Water Company from which it purchased the plant; its activity in supplying water for domestic purposes, for hire, carries with it the duty to exercise care, commensurate with the risk involved, to see that the water which it supplies is free from filth and germs which will affect the health of its customers, just as is a private operator of a water system.

To say that the city is required to supply an adequate amount of water, but is not concerned with the quality of that water because the quality has to do with the public health, would be a refinement of technical hair-splitting. To say that the health officers have been negligent is not defense to the charge that the city knowingly delivered polluted water to a customer; if the attempt was to hold the city liable in a matter wherein it was obeying a mandate of the health officers, a different question would be presented.

Even where it is held that, as the statutes give to the health officers supervisory control, the city is not required to watch "over the quality of this water as affected by the natural sources of supply," the city is "bound to keep its sewers and streets in such condition that the waters would not be polluted." Danaher v. City of Brooklyn, 51 Hun, 563, 4 N.Y.S. 312, 315.

In Griffith v. City of Butte, 72 Mont. 552, 234 P. 829 831, this court quoted from City and County of Denver v. Maurer, 47 Colo. 209, 106 P. 875, 135 Am. St. Rep. 210, as follows: "When a city, acting in its private corporate character, by means of that sewer, created on its streets a condition that menaced the health and comfort of the community, no authorities need be cited to show that it was its private corporate duty to remove that condition from its streets....