Coldwater v. State Highway Commission

• Decision Date: 23 October 1945
• Docket Number: 8516.
• Parties: COLDWATER et al. v. STATE HIGHWAY COMMISSION et al.
• Court: Montana Supreme Court

162 P.2d 772

118 Mont. 65

COLDWATER et al. v. STATE HIGHWAY COMMISSION et al.

No. 8516.

Supreme Court of Montana

October 23, 1945

Appeal from District Court, Sixth Judicial District, Gallatin County; Benjamin E. Berg, Judge.

Action by Lipman Coldwater, Elliott Coldwater and Ralph Coldwater against the State Highway Commission of the State of Montana and others for damages arising out of death of Henrietta Coldwater as result of skidding on a state highway of an automobile in which decedent was a passenger. From a judgment dismissing the action as to the State Highway Commission Walter W. Phillips, John M. Wheeler, Lee M. Ford, Hartford Accident & Indemnity Company and Fireman's Fund Indemnity Company, the plaintiffs appeal.

Judgment affirmed.

Stanley R. Foot, of Helena, for appellants.

William A. Brown, Sp. Asst. Atty. Gen., for respondent State Highway Commission.

R. V Bottomly, Atty. Gen., Fred Lay, 1st Asst. Atty. Gen., and Weir, Clift & Bennett, of Helena, for respondents Hartford Accident & Indemnity Co., Fireman's Fund Indemnity Co. and Lee M. Ford.

CHEADLE Justice.

Action for damages arising out of the death of Henrietta Coldwater as the result of the skidding from a state highway of an automobile in which she was a passenger, allegedly caused by the defective, rough and slippery condition of such highway and absence of signs warning motorists of such dangerous condition.

The action was filed originally in the District Court of Lewis and Clark County, and thereafter transferred to Park County.

Of the thirteen defendants named in the complaint, as amended, only six appeared. So far as the record discloses the other seven were not served, and defaults were not entered against them.

On May 20, 1943, the defendant State Highway Commission filed general and special demurrers to the second amended complaint, as did the defendants Walter W. Phillips and John M. Wheeler. The special demurrers are grounded on lack of jurisdiction of the defendants or the cause of action, misjoinder of parties defendant, and improperly united causes of action.

On July 12, 1943, the demurrers of these defendants were sustained, 'upon the ground that complaint as against said demurring defendants does not state a cause of action.' The trial court appears thus to have acted only upon the general demurrers. No further pleading having been filed within the prescribed time, judgment of dismissal as to the defendants above named was entered on August 16, 1943.

During February, 1944, three separate general and special demurrers to the second amended complaint were filed by the defendants Hartford Accident & Indemnity Company, Lee M. Ford, and Fireman's Fund Indemnity Company, the special demurrers being grounded upon misjoinder of parties defendant and improperly united causes of action. Thereafter these general and special demurrers were sustained, and the plaintiff having failed to further plead within the prescribed time, judgment of dismissal as to the three last-mentioned defendants was entered on June 19, 1944.

As above noted, the defendants affected by this appeal are State Highway Commission, Walter W. Phillips, John M. Wheeler, Lee M. Ford, Hartford Accident & Indemnity Company, and Fireman's Fund Indemnity Company. The two named corporations are alleged to be sureties on the official bonds of the defendants Lee M. Ford and John M. Wheeler, respectively, as members of the State Highway Commission.

While the caption of the complaint does not so designate them, the complaint alleges that at all of the times mentioned the defendants Lee M. Ford, Walter W. Phillips and John M. Wheeler were the duly appointed, qualified and acting members of the State Highway Commission of the state of Montana. Judgment is asked against them individually and against the State Highway Commission.

The material allegations of the complaint are as follows: A public highway extending through Belgrade, Montana, is a part of a system of primary or interstate highways designated by the state and the Highway Commission as a state highway, constructed with federal assistance. The individual defendants, as members of the Highway Commission, voluntarily maintained and operated a division of maintenance and control, for the purpose of maintaining said highway. That 'it was the ministerial duty of the said defendants, having voluntarily assumed the obligation of maintaining said highway, to see that the said highway was kept in proper and reasonable state of repair and to prevent the obstruction of the free passage and use of the said highway, and in the repair and maintenance of said highway to erect or cause to be erected and maintained suitable and sufficient warning signs as might be reasonably necessary on and along the said highway to warn the travelling public of the dangerous or unsafe sections thereof, and to exercise reasonable care in the maintenance, operation and control of said highway, so that it would be in a reasonably safe condition for public travel.' Said defendants under authority vested in them employed a state highway engineer, a maintenance engineer, and a district maintenance engineer, under whose direction a maintenance employee was charged with the duty of patrolling such highway and maintaining same in repair. The defendants were charged with the duty of formulating necessary rules and regulations for the proper maintenance of such highway and of taking steps to warn the public of dangerous and unsafe portions thereof. It was the duty of the defendants to repair any such dangerous or unsafe conditions of which they had knowledge, and to place or cause to be placed signs warning of such conditions. 'It was the duty of * * * defendants to exercise reasonable care and diligence to avoid creating any slippery, dangerous or unsafe condition on the highway by placing or causing oil to be placed on the surface thereof which would render the same slippery and dangerous and unsafe for use by the travelling public.'

That defendants, at some time prior to April 30, 1939, covered the surface of the highway with oil for the purpose of sealing the same, knowing that such application would make the highway slippery and dangerous for vehicles when made wet by snow or rain, by reason of the fact that the oil applied was unsuitable for use on roads, becoming exceedingly slippery when wet. On and prior to the date mentioned the said highway to the west of and extending through Belgrade was in a dangerous and defective condition in that its surface was rough, uneven and corrugated to such an extent, 'as would throw automobiles out of control that came upon the same, driven by persons without knowledge of the unsafe condition thereof.' That for a period of time prior to said date sufficient to permit repairs, the defendants knew, or by the exercise of reasonable diligence should have known, of such defective condition, 'and that the drivers of vehicles proceeding over the same might lost [lose] control of such vehicles by reason of the peculiarly rough, corduroy, corrugated and uneven surface of the said highway, so that said vehicles might overturn, * * * and that by reason of the application of said oil to the surface of said highway as aforesaid, said highway was exceedingly slippery and dangerous when wet so that vehicles travelling over the same in wet weather might skid from said highway and overturn, causing injury to the occupants thereof; that nevertheless said defendants * * * negligently failed and omitted to repair said highway * * * and failed and omitted to provide by rules and regulations theretofore adopted, that when a road becomes dangerous and unsafe for use, warning signs should be stationed at dangerous sections of highway, * * * and negligently failed and omitted to place or cause warning signs to be placed upon the aforesaid section of highway prior to the time of the accident hereinafter described, so that approaching motorists would be advised of the unsafe condition * * *.'

That on April 30, 1939, at about 8:45 o'clock p. m., Henrietta Coldwater was riding in an automobile being driven in an easterly direction upon the described section of the highway toward Belgrade. Rain was then falling and the surface of the highway was wet. That the automobile was proceeding at a reasonable rate of speed, and both passenger and driver were without knowledge of the condition complained of. As 'said automobile * * * came upon said dangerous, defective part of said highway * * * the same was jolted out of control * * * by reason of the rough and corduroy surface thereof and skidded from said highway and overturned, causing the injury to Henrietta Coldwater hereinafter mentioned; that each of the aforesaid negligent acts and omissions of said defendants was a proximate cause of the overturning of said automobile.'

As above noted, the general demurrers of the defendants State Highway Commission, Phillips and Wheeler were sustained. Both the general and special demurrers of the defendants Ford and the surety companies were sustained. Because of the conclusion reached, we find it unnecessary to review the action of the trial court as to the special demurrers.

The questions presented are whether the complaint states facts sufficient to establish the liability of the State Highway Commission, or the individual liability of the members of that commission.

The State Highway Commission was created and is governed by the provisions of Chapter 156 of the Political Code, being section 1783 to 1800, Revised Codes, 1935. Section 1783 created the commission, to consist of commissioners to be appointed by the Governor, and gives it power to appoint an engineer and other employees. Section 1784 requires the engineer to perform such...