Fifield v. Common Council of City of Phoenix

• Decision Date: 08 March 1894
• Docket Number: Civil 409
• Citation: 36 P. 916,4 Ariz. 283
• Parties: GEORGE FIFIELD, Plaintiff and Appellant, v. THE COMMON COUNCIL OF THE CITY OF PHOENIX, Defendant and Appellee
• Court: Arizona Supreme Court

36 P. 916

4 Ariz. 283

GEORGE FIFIELD, Plaintiff and Appellant, v. THE COMMON COUNCIL OF THE CITY OF PHOENIX, Defendant and Appellee

Civil No. 409

Supreme Court of Arizona

March 8, 1894

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. A. C. Baker Judge.

Affirmed.

Kibbey & Israel, for Appellant.

This case is distinguishable from that large class of cases wherein municipal corporations are held liable for mere negligence. In this case the city authorized the discharge of the fireworks, and therefore became a participant in an unlawful proceeding, and became, as it were, a partner in maintaining a nuisance.

When a municipal corporation charged with the care and maintenance of its streets goes so far as not only to negligently omit to make them reasonably safe, but to expressly authorize the creation of a nuisance in them, from which injury proximately results, it, we submit, should be held liable. Cohen v City of New York, 113 N.Y. 532, 10 Am. St. Rep. 506, 21 N.E. 700.

The case of Speir v. City of Brooklyn, 139 N.Y. 6, 36 Am. St. Rep. 664, 34 N.E. 727, is on all fours with the case at bar, and the court there held in an exhaustive opinion that the city should be held liable.

L. H Chalmers, for Appellee.

In cases like this the charter of the city of Phoenix expressly provides that there shall be no liability. Sec. 7, art. 18, Charter of the City of Phoenix, passed by the thirteenth legislative assembly of the territory of Arizona, March 11, 1885.

But even if no such exemption existed, the weight of authority is overwhelming that no liability exists under the circumstances of this case. Cooley on Municipal Corporations, sec. 949; Cooley on Torts, p. 620; Wheeler v. City of Plymouth, 116 Ind. 158, 18 N.E. 532; Lincoln v. City of Boston, 148 Mass. 578, 12 Am. St. Rep. 601, 20 N.E. 329; Tindley v. City of Salem, 137 Mass. 171, 50 Am. Rep. 289; Hill v. Board of Aldermen, 72 N.C. 55, 21 Am. Rep. 451; Rivers v. City Council of Augusta, 65 Ga. 376, 38 Am. Rep. 787; Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332.

A municipal corporation is an instrumentality of government, and is not liable for the failure to exercise legislative or judicial powers, nor for an improper or negligent exercise of such powers. Wheeler v. Cincinnati, 19 Ohio St. 19, 2 Am. Rep. 368; Dooley v. Town of Sullivan, 112 Ind. 451, 2 Am. St. Rep. 209, 13 N.E. 566; City of Terre Haute v. Hudnut, 112 Ind. 542, 13 N.E. 686; Faulkner v. City, 85 Ind. 130; City v. Timberlake, 88 Ind. 330; McDade v. Chester City, 117 Pa. St. 414, 2 Am. St. Rep. 681, 12 A. 421; McArthur v. Saginaw, 58 Mich. 357, 55 Am. Rep. 687, 25 N.W. 313; Agneu v. Corunna, 55 Mich. 428, 54 Am. Rep. 383, 21 N.W. 873; Hines v. Charlotte, 72 Mich. 278, 40 N.W. 333; Kiley v. Kansas City, 87 Mo. 103, 56 Am. Rep. 443; Hubble v. City of Viroqua, 67 Wis. 343, 30 N.W. 847.

Giving the case of Speir v. Brooklyn all the appellant claims for it, it stands alone in American and English jurisprudence.

Hawkins, J. Rouse, J., and Sloan, J., concur.

OPINION

The facts are stated in the opinion.

HAWKINS, J.--

This was an action by appellant to recover damages for personal injuries sustained by him. He based his claim for relief upon the facts that the appellee is a municipal corporation created by an act of the legislative assembly of the territory, approved February 25, 1881, and an act of March 11, 1885, amendatory thereof; that the corporation, in 1889, ordained, among other things, that it should be unlawful for any person within certain city limits, to make any bonfire, discharge any firecrackers, skyrockets, or any fireworks whatever, etc., without first having obtained permission therefor from the city marshal (this ordinance was in effect at the time of appellant's injuries); that on the fifteenth day of February, 1893, the city, by and through its members, its mayor, and its marshal, unlawfully and negligently granted to certain Chinese permission to set off discharge, and explode fireworks upon certain streets of said city, within the fire limits; that appellant, a hackdriver, on that day, while in the proper pursuit of his business, was driving along the streets of said city; that while so driving along a street within said fire limits, the Chinese, acting under the permit so granted them, fired off and exploded a large quantity of fireworks, firecrackers, and bombs, whereupon appellant's horses (they being gentle and well broken) became frightened and unmanageable, and threw appellant to the ground, all without fault upon his part, and he was thereby very seriously injured, sustaining a very serious fracture of the leg, and otherwise bruised. The court below sustained a general demurrer to the complaint on this state of facts, and appellant asks that the ruling be reversed.

Section 7 of article 18 of the charter of the city of Phoenix provides as follows: "Sec. 7. That said corporation shall not be liable to any one, or for any loss or injury to person or property growing out of or caused by the malfeasance, misfeasance, or neglect of duty of any officer or other authorities of said city or for any injury or damages happening to such person or property on account of the condition of any zanja, sewer, cesspool, street, sidewalk, or public ground therein, but this does not exonerate any officer of said city or any other person from such liability when such casualty or accident is caused by willful neglect of duty enforced upon such officer or person by law or by gross negligence or willful misconduct of any such officer or person in any other respect." It seems to us that any fair construction of this section inhibits such form of action against the city. Appellant in his reply brief disclaims any negligence on the part of the city marshal in granting the permit, but says it became the negligent act of the city itself, and such city was an agency in the committing of the injury. We are unable to agree to this line of argument. It could not do more than to undertake the evasion of the plain letter of the city charter. Under this charter, if the city officer performs an act which is authorized by an ordinance, it would not, on his part, be negligence. Then how could it become negligence on the part of the city itself?

Plymouth Indiana, had an ordinance prohibiting the firing of gunpowder or any other substance, except on occasions of public rejoicing, when the mayor granted permission to fire guns, cannons, and other things in which gunpowder was used. On the 4th of July, 1885, the mayor granted permission to fire gunpowder in an anvil on a lot in said city; and when it was fired it blew gravel and stones against one of Wheeler's plate-glass windows and broke them. The supreme court of Indiana, in Wheeler v. City of Plymouth, 116 Ind. 158, 18 N.E. 532, in passing upon the question of the liability of the city says: "A city which has an ordinance prohibiting the firing of gunpowder, but allowing the mayor to license such firing on certain occasions, is not liable for the damages occasioned by the negligence of the licensees, there being nothing to show that the authorized act was necessarily dangerous." It is also decided in the same case that "there is no actionable breach of corporate duty in failing to enact a proper ordinance, or in failing to enforce one that has been enacted; and consequently this action cannot be maintained upon the theory that there was a proper ordinance, nor upon the theory that the ordinance was not enforced." Under this theory it seems clear that the action at bar could not be maintained if the ordinance was not enforced. Then, upon what system of reasoning could it be maintained because it was suspended for a day? For failing in governmental action, municipal corporations are responsible only to their corporators or the power creating them. Cooley on Torts, 620. It shows no ground of action when one complains that he has suffered damages because the operation of an ordinance which prevents the...