Etter v. City of Eugene

• Decision Date: 07 July 1937
• Citation: 157 Or. 68,69 P.2d 1061
• Parties: ETTER v. CITY OF EUGENE et al.
• Court: Oregon Supreme Court

69 P.2d 1061

157 Or. 68

ETTER v. CITY OF EUGENE et al.

Supreme Court of Oregon

July 7, 1937

In Banc.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

Action by Ethel Etter, by her guardian ad litem Wayne I. Etter against the City of Eugene and others. Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

S. M. Calkins, of Eugene, for appellants.

Gordon S. Wells, of Eugene, for respondent.

Frank S. Grant, City Atty., of Portland, amicus curiæ.

RAND Justice.

The plaintiff, a girl sixteen years of age, while swinging in a public park in the City of Eugene, sustained an injury through the breaking of a link in one of its chains. She sued the city and the members of its common council by a guardian al litem, basing her right to recover upon the alleged negligence of the city and the members of the common council in failing to inspect and keep the swing in proper condition and repair. She obtained a judgment against all the defendants and they have appealed.

In her complaint, the plaintiff alleged that Hendrick's Park the place where the accident occurred, is a public park and is maintained by the City of Eugene as a public park playground, and picnic ground for the use, benefit, and pleasure of the general public, and the whole evidence shows that the city charges nothing for admission into the park and receives no emoluments, profits, or special benefits from its operation. In other words, it is both alleged and proved that this park is maintained at the expense of the taxpayers of the city exclusively for the use and enjoyment of the public and not because of any special benefit derived therefrom by the city.

It is well settled in this state that the powers which may be exercised by a municipal corporation, such as a city or town, are of two kinds; the one governmental, legislative, or public, the other proprietary or private. When acting in their public capacity, that is to say, in matters pertaining to the government of their inhabitants and the ordering of their public officers, they exercise the public franchises conferred upon them solely for the public good rather than for their special advantage and, in so acting, they are, in respect to said matters, a part of the machinery of the state government and for the acts and omissions of their officers, agents, and employees they are not liable at the suit of a private person. But when acting in their proprietary or private character, they are regarded as acting for their own emolument or gain rather than from considerations of state, and, although the public may derive a common benefit therefrom, they are, in respect to such matters, subject to the same liability as a private corporation.

In this state it is settled by an unbroken line of decisions that a municipal corporation, when engaged exclusively in the performance of its political and governmental functions, is not liable at the suit of a private person for the negligent acts of its officers, agents, and employees. Caspary v Portland, 19 Or. 496, 24 P. 1036, 20 Am.St.Rep. 842; Esberg Cigar Co. v. Portland, 34 Or. 282, 55 P. 961, 43 L.R.A. 435, 75 Am.St.Rep. 651; Wagner v. Portland, 40 Or. 389, 60 P. 985, 67 P. 300; Pacific Paper Co. v....