Cunningham v. City of Seattle

• Decision Date: 05 March 1906
• Citation: 42 Wash. 134,84 P. 641
• Parties: CUNNINGHAM v. CITY OF SEATTLE.
• Court: Washington Supreme Court

84 P. 641

42 Wash. 134

CUNNINGHAM v. CITY OF SEATTLE.

Supreme Court of Washington

March 5, 1906

On rehearing. Petition denied.

For former opinion, see 82 P. 143.

ROOT, J.

A petition for a rehearing was granted in this case. After reargument and a careful consideration of the question involved, the majority of the court have been unable to reach a conclusion different from that heretofore announced. Cunningham v. Seattle, 82 P. 143. An exhaustive examination of the authorities convinces us that there is no legal escape from that conclusion. It is sought to distinguish this case as being one of trespass and not controlled by the ordinary rule that municipalities are not holden for damages occasioned by its officers and agents in the exercise of its governmental functions. We think no such distinction is established by the authorities or sustainable on principle. To uphold such a distinction would be to entail absurd consequences. To illustrate: A fireman negligently absents himself from the city's fire engine, under his control, and for lack of attention the boiler explodes hurling a mass of iron which damages a citizen's lot. It is admitted that the citizen cannot recover against the city. The same fireman absents himself from the engine horses under his care, and for lack of attention one escapes and tramples the citizen's lawn. The latter, under respondent's theory, is entitled to recover damages because it is a trespass. Take another illustration: A fireman purposely or accidently 'turns the hose' upon a citizen's yard and injures it without subjecting the city to damage. But if he purposely or carelessly permitted the city's fire engine horses to go into said yard respondent says the city would be liable. Another: If a city's policeman, while on duty, should go upon the premises of a citizen and unlawfully beat him, the city would not be liable. But if the policeman had one of the city's horses under his control and permitted it to stray upon the citizen's lawn, it is contended that the city would be liable. Again: If the horses hauling the fire engine are negligently handled by the driver, and, on account of his carelessness, run across a citizen's lawn, no liability is thereby occasioned against the city. But if the fireman's attention is drawn from the horses to the fighting of a dangerous fire or for any other purpose, and the horses in the meantime trespass upon the premises of a citizen, it is urged that the city is holden for damages. In the absence of a statute or established judicial authority we are not justified in recognizing such distinctions. In the discharge of governmental functions, the city exercises a portion of the state's sovereignty. 'The king can do not wrong' was long ago a familiar maxim. The principle is still extant and pervades our laws except where its application has been limited by Constitutions, statutes, and the customs, institutions, and conditions of our people. It is a logical consequence of the conditions where it obtains. Politically and socially, what is a city? An aggregation of people. Who own the fire engine horses? The people comprising the city. Respondent owned as great an interest in this horse as any other citizen of Seattle. Can a person maintain an action against his associates for injury done him by an animal owned jointly by him and them? Can be sue them for the result of a trespass which could not have occurred but for the neglect of the animal's keeper, who was the servant of himself and them jointly? When this respondent sues the city of Seattle for the injuries occasioned by its trespassing horse, is he not prosecuting his joint owners (perhaps himself also) for damages done by his horse while running loose as a result of the neglect and carelessness of his own servant, the fireman? It is said that the case does not depend upon the negligence of the fireman. Let us see if this argument is consistent with respondent's other contentions. He claims that it was the duty of the city to prevent its horses from trespassing. It was necessary that this duty should be performed by some agent or servant of the city. The fireman was the agent or servant upon whom the city fixed that obligation. If he had not neglected the duty, the horse would not have escaped. His neglect was negligence. Hence it is impossible to conceive of the horse being at large except as a result of negligence--of a breach or neglect of duty--on the part of some agent employed to care for the horse.

The rule exempting municipalities from liability for negligence in the matter of governmental functions has one well-recognized exception--that in regard to injuries sustained upon sidewalks, streets, and public places. Possibly there are other exceptions, but we are not advised of any covering a case like that at bar. In Lawson v Seattle, 6 Wash. 184, 33 P. 347, this court, through Dunbar, C.J., said: 'We believe there are no authorities which support appellant's contention that a municipal corporation is liable for the negligence of firemen engaged in the line of their duty. The authorities cited by appellant certainly do not maintain this proposition, but, on the contrary, most of them assert exactly the opposite proposition, viz., the rule that a municipal corporation is not liable for the negligence of firemen engaged in the line of their duty. This is so plainly the well-established rule that it is scarcely necessary to discuss it. See Dillon on Municipal Corp. (4th Ed.) § 976, and cases cited.' In Russell v. Tacoma, 8 Wash. 156, 35 P. 605, 40 Am St. Rep. 895, Anders, J., speaking for the court, employed this language: 'While it is not always easy to draw the line between the public, or governmental, and private powers of municipal corporations, we think the respondent city, under the facts in this case, in improving the park, was exercising a power or franchise conferred upon it for the public good and not for private corporate advantage. And this being so, it is not liable for the acts or omissions of its officers in that behalf.' In Sutton v. Snohomish, 11 Wash. 24, 39 P. 273, 48 Am. St. Rep. 874, this court spoke as follows: 'In preserving the peace, caring for the poor, preventing the destruction of property by fire, and preserving the public health, it [the city] assumes duties which are said to be in their nature solely governmental (Jones, Neg. Mun. Corp. c. 4), and for the nonexercise or negligent exercise of which the corporation is not generally liable to individual citizens.' In Lynch v. North Yakima, 37 Wash. 657, 80 P. 79, the following appears: 'It would seem, therefore, the in creating, maintaining, and operating the fire department, the city was exercising governmental functions. This seems to have been the view entertained by the courts that have considered this subject. In the case at bar the respondent has provided, and was maintaining, a fire department. The horses, engines, and apparatus were under the charge of a fire chief. In view of these facts, and in view of the character of the employment in which appellant was engaged, it impresses us as a case where the circumstances of his injury occasion no liability upon the part of the city,' In the case last cited there was a second cause of action based upon negligence of the city officers in handling a smallpox patient. Touching that branch of the case the following language was used: 'The handling of persons sick with contagious diseases is a duty which the city performs, through its officers and agents, in the exercise of governmental functions. The benefits of such service go to the public, and not to the municipality as a corporate body. Hence, the manner in which the officers of the city perform said service cannot, ordinarily, render the municipality liable in damages.' In Murtaugh v. St. Louis, 44 Mo. 479, the Supreme Court of Missouri spoke as follows: 'Where the officer or servant of a municipal corporation is in the exercise of a power conferred upon the corporation for its private benefit, and injury ensues from the negligence or misfeasance of such office or servant, the...