Caspary v. City of Portland

• Decision Date: 27 October 1890
• Citation: 19 Or. 496,24 P. 1036
• Parties: CASPARY et al. v. CITY OF PORTLAND.
• Court: Oregon Supreme Court

24 P. 1036

19 Or. 496

CASPARY et al. v. CITY OF PORTLAND.

Supreme Court of Oregon

October 27, 1890

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

The only question presented on this appeal is the sufficiency of the plaintiffs' complaint, which is as follows "Johanna Caspary and J. Octavia Caspary, Plaintiffs, vs the City of Portland, Defendant. Johanna Casparry and J Octavia Caspary, the plaintiffs in this action, complain of the defendant herein, and for cause of action allege that the defendant, the city of Portland, is a municipal corporation created by and existing under a law of the state of Oregon entitled 'An act to incorporate the city of Portland,' approved October 24, 1882, and acts amendatory thereof; that during all the times hereinafter mentioned the plaintiffs were and now are the owners of, and entitled to the possession, in their own right, of all the personal property described in the following schedule, No. 1, and that the same was of the value stated therein; that at all times herein mentioned the plaintiffs were and now are entitled to the possession of the personal property described in the following schedule, No. 2, as bailees for one Joseph Windle and that it was all of the value stated in said schedule, No. 2; that the defendant, the city of Portland, on or about the 1st day of November, 1888, unlawfully took and carried away all of the above mentioned and described property, and unlawfully converted and disposed of the same to its own use, to the damage of plaintiffs in the sum of $2,069.85. Wherefore plaintiffs demand judgment against defendant for $2,069.85, and for their costs and disbursements herein." The name of the court, verification, and signatures are omitted. A demurrer was interposed, which was sustained, and final judgment rendered thereon, from which the plaintiffs have appealed.

(Syllabus by the Court.)

An exhibit may be made a part of a pleading by marking it so that it may be identified, and reciting in the pleading itself that such exhibit is so marked and made a part of it. Aliter, though filed with the pleading and numbered as Schedule 1.

A municipal corporation is not generally liable for the wrongful act of an officer, and, in the few cases where it may be liable, it must be made to appear that such officer was not an independent public officer, and that the wrong complained of was done by such officer while in the legitimate exercise of some duty of a corporate nature, which was devolved upon him by law, or by the direction of the corporation.

H.T. Bingham, for appellants.

W.H. Adams, for respondent.

STRAHAN, C.J., (after stating facts as above.)

To sustain the ruling of the court below, counsel for the respondent has argued two propositions in this court: First, that the schedules mentioned constitute no part of the complaint, and that, therefore, the complaint contains no description of the property alleged to have been converted, or statement of value; and, second, that the defendant being a municipal corporation, and necessarily acting through its officers, it ought to appear that at the time of the alleged wrongful acts the officers were engaged in the performance of some corporate act, or that the officer doing the act was not an independent public officer. These questions will be examined in the order stated.

1. The facts constituting the plaintiff's cause of action must be alleged in the complaint. The appellants' counsel insists that, taking the complaint and schedules referred to together, they do contain every allegation necessary. We think that must depend on whether or not the schedules constitute a part of the complaint. The schedules contain various items of personal property, and opposite each item are figures showing the value thereof; but they are in no way identified or marked as exhibits, nor is it stated in the pleading that they are attached or made a part of it. If these schedules had been marked so that they could be identified with certainty and then annexed to the complaint as a part thereof, and these matters had appeared in the complaint, we think, according to the constant practice in this state, they would constitute a part of the pleading, not for the purpose of supplying necessary allegations therein, but for the purposes of description and itemizing the values. It is true, some of the authorities cited by respondent's counsel hold that exhibits cannot be made a part of the pleading, but, for the purposes above indicated, the practice in this state has been otherwise, since the adoption of the Code, and we are unwilling to disturb it. But, to make an exhibit a part of the record, it must be attached and identified as in Morrison v. Crawford, 7 Or. 473. It is true, in that case the exhibits were attached to a bill of exceptions, but as much certainty ought to be observed in the preparation of a pleading; and we can perceive no reason for a different rule. Counsel for appellant referred to Hill's Code, § 83, but I fail to see that that section has any application to the question presented by this record.

2. Numerous authorities are cited by counsel on the other question, but none of them seem to be identical with the question presented by this record. The complaint alleges the conversion of chattels by the defendant. Now, it is manifest that the defendant could only do the act, if at all, through some of its officers or agents. An individual is liable to a person injured for any wrongful act causing injury, but a municipal corporation is not liable for the torts of its...