City of Denver v. Davis

• Decision Date: 02 July 1906
• Citation: 86 P. 1027,37 Colo. 370
• Parties: CITY OF DENVER v. DAVIS.
• Court: Colorado Supreme Court

86 P. 1027

37 Colo. 370

CITY OF DENVER v. DAVIS.

Supreme Court of Colorado

July 2, 1906

Appeal from County Court, City and County of Denver; Albert S Frost, Judge.

Action by Mary E. Davis against the city of Denver. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

H. M. Orahood and N. B. Bachtell, for appellant.

William Young, George F. Dunklee, and O. E. Jackson, for appellee.

MAXWELL J.

This was an action by Mary E. Davis against the city of Denver to recover damages resulting from the destruction of her property by fire alleged to have been caused by the negligence and carelessness of the officers and agents of the city. Plaintiff was the owner of personal property in a building adjacent to the city dumping ground, which had been established by the health commissioner of the city pursuant to the requirements of a municipal ordinance. The supervision and control of the dumping ground was in the health commissioner, who discharged this duty by officers appointed by him and paid by the city. The combustible material deposited on the dump had been burning several weeks, when on May 2, 1901, the fire, driven by a heavy wind communicated to the building in which plaintiff's property was stored, and the same was destroyed. A trial to a jury resulted in a verdict and judgment for plaintiff.

The assignment of errors raises but one question. The city requested the court to instruct the jury, in substance, that the disposition of the garbage of the city was not a corporate duty performed by the city for its local or pecuniary benefit, but was a public or governmental duty placed upon the city by the Legislature of the state, to be performed under the supervision of the health commissioner, who is a public official, and not in any sense a corporate official; therefore, if the jury found from the evidence that the damage to the plaintiff was caused by the location of the dump and improperly and carelessly maintained by the health commissioner of the city at such place, then the plaintiff cannot recover against the city, because the negligence or nonperformance of duty of a public officer, such as the health commissioner, cannot be charged against the city of Denver, as the city is but the agent of the state in such matters, and can be held to no greater liability than could the state itself. The requested instruction was refused, and error is assigned thereon. The instruction is subject to the objection that it was predicated upon the ground that the disposition of garbage of the city is a political and governmental duty; whereas, the evidence failed to show that garbage, using that term in its strict sense, was deposited upon the dumping ground. However, we prefer to dispose of the case upon the principles involved, rather than upon a technical objection to the instruction.

In the discharge of its functions a municipality is called upon to perform duties a two classes, the one political and governmental in its character, and the other private and corporate. The distinction between the two is thus stated by Judge Thomson, in Veraguth v. City of Denver, 19 Colo.App. 473, 477, 76 P. 539, 540: 'One class of its powers is of a public and general character, to be exercised in virtue of certain attributes of sovereignty delegated to it for the welfare and protection of its inhabitants; the other relates only to special or private corporate purposes, for the accomplishment of which it acts, not through its public officers as such, but through agents or servants employed by it. In the former case its functions are political and governmental, and no liability attaches to it either for nonuser or misuser of a power; while in the latter, it stands upon the same footing with a private corporation, and will be held to the same responsibility with a private corporation for injuries resulting from its negligence. Dillon on Munic. Corporations, § 974; Hayes v. Oshkosh, 33 Wis. 314, 14 Am.Rep. 760; Aldrich v. Tripp, 11 R.I. 141, 23 Am.Rep. 434; Insurance Co. v. Keeseville, 148 N.Y. 46, 42 N.E. 405, 30 L.R.A. 660, 51 Am.St.Rep. 667; Wagner v. Portland, 40 Or. 389, 60 P. 985, 67 P. 300.' The same doctrine is recognized in McAuliffe v. City of Victor, 15 Colo.App. 337, 62 P. 231. In Maxmilian v. Mayor, 62 N.Y. 160, 20 Am.Rep. 468, Judge Folger thus states the doctrine: 'There are two kinds of duties which are imposed upon a municipal corporation: One is of that kind which arises from the grant of a special power, in the exercise of which the municipality is as a legal individual; the other is of that kind which arises, or is implied, from the use of political rights under the general law, in the exercise of which it is as a sovereign. The former power is private, and is used for private purposes; the latter is public and is used for public purposes. The former is not held by the municipality as one of the political divisions of the state; the latter is. In the exercise of the former power, and under the duty to the public which the acceptance and use of the power involves, a municipality is like a private corporation, and is liable for a failure to use its power well, or for an injury caused by using it badly. But where the power is intrusted to it as one of the political divisions of the state, and is conferred not for the immediate benefit of the municipality, but as a means to the exercise of the sovereign power for the benefit of all citizens, the corporation is not liable for nonuser, nor for misuser, by the public agents.'

The rule which determines the liability or nonliability of a municipality in cases of this nature is the character of the duty performed, rather than the department, officer, or agent of the corporation by whom the duty is performed. The authorities all hold that a municipality is not liable for the acts of officers or agents of the departments of health police, or fire, while in the performance of public...