Caviness v. City of Vale

• Decision Date: 11 December 1917
• Parties: CAVINESS v. CITY OF VALE ET AL.
• Court: Oregon Supreme Court

169 P. 95

86 Or. 554

CAVINESS v. CITY OF VALE ET AL.

Supreme Court of Oregon

December 11, 1917

In Banc.

Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge.

Action by Minnie B. Caviness against the City of Vale and others. Demurrer by City to the complaint was sustained, and the plaintiff appeals adversely to City of Vale. Affirmed.

This is an action against the city of Vale and A. W. Glenn, Saxon Humphrey, M. E. Thayer, H. R. Dunlop, and J. E. Lawrence members of the council of said city, and B. W. Mulkey, owner of a lot adjoining the sidewalk where the alleged injury hereafter described occurred, to recover damages for an injury alleged to have happened by reason of plaintiff stepping into a hole in a defective sidewalk. By the provisions of the charter it is made the duty of all owners of property adjoining any street in the city to "construct, reconstruct and maintain in good repair the sidewalks in front of said property." If any owner of such lot fails to construct or suffers any sidewalk to become out of repair, it is made the duty of the city marshal to post a notice upon the adjacent property, directing the owner to immediately repair the sidewalks, and to file an affidavit with the city recorder stating when and where such notices were posted; thereafter the city recorder is required to send by mail a notice to such owner to repair such defective sidewalk.

Section 197 of the charter provides that if the owner of such lot shall refuse to make such repairs within the time designated the city engineer shall make the same, and shall report monthly to the council the cost of such repairs, and a description of the lot fronting upon the sidewalk upon which said repairs were made. The council was authorized to exercise the same general authority and supervision over sidewalk construction and repair as it had over street improvements, and was directed to approve the reports by the city engineer of expenditures for that purpose if found reasonable, and at least once a year to collect the cost of such repairs from the owners of adjoining property by assessment and sale, in the same manner as assessments for street improvements were collected. It was also provided that advances from the street and park fund to pay for such repairs might be made at the discretion of the council, to be reimbursed by special assessment when collected. Section 200 of the charter is as follows:

" Damage for Negligence. It is not only the duty of all owners of land within the city to construct sidewalks and to keep in repair all sidewalks constructed or existing in front of, along or abutting upon their respective lots or parts thereof and parcels of land, but such owners are hereby declared to be liable for all damages to whomsoever resulting, arising from their fault or negligence in failing to construct or put such sidewalks in repair, and no action shall be maintained against the city of Vale by any person injured through or by means of the lack of or defect in any sidewalk."

The complaint alleged: That at all the times mentioned in the complaint there were sufficient funds in the hands of the city treasurer and available, with which defendants-- the city and its councilmen--might have repaired the walk, and that by virtue of certain provisions of the city charter which are set out in full in the complaint, said defendants had full power and authority to raise and provide sufficient funds for the repair of said sidewalk and put the same in safe condition for travel. That on the 9th day of December 1915, at the time of the injuries complained of and for several months prior thereto, the sidewalk in front of and along lot 1 in block 20 was and has been in a defective and dangerous condition, which was particularly described, and that said defects rendered travel over the same extremely unsafe and dangerous, particularly after nightfall, and that such condition was at the date of said injuries and for several months prior thereto known to each and all of the defendants. That on October 15, 1915, the defendants officers of said city, caused the following notice to be made out, posted, and mailed to defendant Mulkey, the owner of the lot fronting on said defective sidewalk:

"Notice to Repair Sidewalk.

"To B. W. Mulkey--Greeting:

"You are hereby notified to repair the sidewalk abutting lot No. 1, block 20, of Original City of Vale, Malheur county, Oregon, on the N. & W. sides and along B and C streets, in a good and substantial manner as provided by ordinance of the said city. Said repairs to be completed within 20 days. Dated and posted on the above-described property, in Vale, Malheur county, Oregon, this 15th day of October, A. D. 1915.

C. A. Powell, City Marshal."

That defendant Mulkey received said notice in time to have repaired the walk. That between October 15, 1915, and December 9, 1915, the defendants carelessly and negligently permitted said sidewalk to be and remain out of repair, and in a dangerous, unsafe and defective order and condition, and carelessly and negligently failed and omitted to erect or cause to be erected any barrier, warning, or other safeguard at or near or upon said sidewalk so as to protect the traveling public from said dangerous and unsafe condition of said sidewalk, or to light or otherwise notify or inform the public of its dangerous and unsafe condition. That on December 9, 1915, while plaintiff was walking over said walk, she stepped her foot into one of the large and dangerous holes therein, whereby she was injured, etc. The city charter required all claims against the city to be filed within six months after the accident happened. The complaint contained no allegation that this had been done. The defendant city filed a general demurrer to the complaint, which was sustained, and the plaintiff appeals.

W. H. Brooke, of Ontario (John L. Rand, of Baker, and P.J. Gallagher, of Ontario, on the brief), for appellant. H. C. Eastham, of Vale, for respondent. H. C. Eastham, of Vale, and William Smith, of Baker, for defendants A. W. Glenn and others. McCulloch & Wood, of Ontario, for defendant B. W. Mulkey.

McBRIDE, C.J. (after stating the facts as above).

It is contended that the complaint is insufficient as against the city for the reasons: (1) That the claim was not presented within six months after the injury, as required by the charter; and (2) that by virtue of section 200 of the city charter, the city is exempt from liability. We will consider these contentions in the order above named.

The first contention is settled adversely to the claim of respondent in Sheridan v. City of Salem, 14 Or. 328, 12 P. 925, wherein it was held that a provision of the charter which provided that "no claim against the city shall be paid, until it is audited and allowed by the common council," did not apply to claims arising ex delicto. It is true that the language used in the Salem charter is probably not quite so comprehensive as the language employed in the Vale charter. The words, "claim for damages," used in the Vale charter, if standing alone and without reference to other provisions of the charter, would seem to be broad enough to include claims arising ex delicto. But a fair construction would seem to be that which would refer the language to such claims as the charter authorized the city to audit and pay. The object was to give the city the option of examining into the merits of the claim and paying it without an action, if deemed proper. In view of the fact that section 200 of the charter expressly declares that the city shall not be liable for claims of the character herein described, it cannot be held that it was in the legislative mind to require the presentation to the council of a claim which it was expressly prohibited from paying. To do so would be to require the performance of a vain and useless ceremony. The authorities upon this subject are conflicting, and will be found collated in an exhaustive note in Henry v. Lincoln, 93 Neb. 331, 140 N.W. 664, as reported in 50 L. R. A. (N. S.) 174, and in Miller v. Mullan, 17 Idaho, 28, 104 P. 660, 19 Ann. Cas. 1107.

The next question presented involves the liability of the city. In the language of Justice Thayer in Sheridan v. City of Salem, supra, "It is the same old, ugly question that has wearied...