Gillmor v. Salt Lake City

Citation89 P. 714,32 Utah 180
Decision Date25 March 1907
Docket Number1820
CourtSupreme Court of Utah
PartiesGILLMOR v. SALT LAKE CITY

APPEAL from District Court, Third District; before Justice T. D Lewis.

Action by Charles Gillmor against Salt Lake City. From a judgment of dismissal, plaintiff appeals.

AFFIRMED.

C. S Patterson for appellant.

APPELLANT'S POINTS.

The general rule in relation to the liability of a municipal corporation for the tortious acts of its agents and servants has been stated as follows: "A municipal corporation is liable for the acts of its officers, servants and agents done within the scope of their authority, though neither expressly authorized in advance nor subsequently ratified by it, or as the rule has been otherwise expressed, a city is liable for the acts of its representatives done bona fide in pursuance of a general authority to act for the city on the subject to which they relate." (20 Am. & Eng. Enc. (2nd Ed.), 1200; Brown v. Cape Girardeau, 90 Mo. 377; Hunt v. Booneville, 65 Mo. 620; Shawneetown v. Mason, 82 Ill. 337; Ross v. Madison, 1 Ind. 281; Wallace v. Muscatine, 4 Greene [Ia.] 373; Hendershott v. Ottumwa, 46 Iowa 658; Thayer v. Boston, 19 Pick. [Mass.] 511; Brink v. Dunmore, 174 Pa. St. 395; Memphis v. Lasser, 9 Humph. [Tenn.] 757.) "It seems to be settled that a municipal corporation may be liable if the acts constituting the trespass were committed by one of its agents or servants while acting within the general scope of his official duties, and without any express authorization." (Williams' Municipal Liability for Torts, p. 52; Quinn v. Paterson, 27 N. J. L. 35; Lee v. Sandy Hill, 40 N.Y. 442; Walling v. Shreveport, 5 La. An. 660; Mulcairns v. Janesville, 67 Wis. 24; Hawkes v. Charlemont, 107 Mass. 417.)

Ogden Hiles and H. J. Dininny for respondent.

RESPONDENT'S POINTS.

Municipal corporations are not liable for the torts or negligence of policemen, because the duties of these officers are of a public nature, and their appointment is devolved by the legislature on cities and towns and boroughs as a convenient mode of exercising a public function. (Vol. 1, Mod. Law of Municipal Corp., sec. 793; Williams' Municipal Liability for Tort, sec. 19; Royce v. Salt Lake City, 15 Utah 401, 405, 407; Norristown v. Fitzpatrick, 94 Pa. 121, 125; Elliott v. Philadelphia, 75 Pa. 347; 44 L. R. A., 795, 801; Harris v. City of Atlanta, 62 Ga. 290; Cook v. City of Macon, 54 Ga. 468; McElroy v. Albany, 65 Ga. 387; Attaway v. Asterville, 68 Ga. 740; Lafayette v. Timberlake, 88 Md. 330.) City not liable for assault and battery or false imprisonment by an officer. (Caldwell v. City of Boone, 51 Iowa 687, 2 N. W., 614; Easterly v. Town of Irwin, 99 Iowa 694, 68 N.W. 919; Peters v. Lindsborg, 40 Kan. 654, 20 P. 490; Bullock v. City of Farrell, 1 Allen [Mass.] 172, 173.)

A city is not liable for the acts of its officers while enforcing an invalid ordinance, or for other illegal or unauthorized acts, nor for the manner of exercising their powers and duties. (City of Caldwell v. Prunelle, 57 Kan. 511, 46 P. 949; Town of Farrell v. Blue, 1 Ind.App. 128.)

City not liable for act of officer in shooting a person while attempting to kill a dog. (Culver v. City of Shentor, 130 Ill. 238, 243, 245.)

When an officer of a municipality has no other authority than that intrusted to him by law, and he acts beyond that authority and commits a tort whereby a citizen is injured either in person or property, the tort is the action of the officer only, and ordinarily no recovery of damages can be had except as against him. (Servis v. San Francisco, 115 Cal. 648, 47 P. 687, 689; Goddard v. Tapswell [Me.], 30 A. S. R. 373.)

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This is an action for damages for a trespass upon and injury to property alleged to have been committed by three police officers of the defendant city jointly with other persons. The plaintiff, in substance, alleges in his complaint that the defendant is a municipal corporation; that the plaintiff is the owner of certain real estate, describing it; that a body of men under the direction and control of three police officers of the defendant city, naming them, were engaged in searching the Jordan river for a dead body supposed to be therein, and in doing so entered upon the inclosure of plaintiff on the land mentioned and trampled and cut up the land within the inclosure, greatly damaging the lucerne growing thereon, and injured and partially destroyed a large number of growing trees, and left a number of unexploded charges of dynamite or other explosives so near to the dam owned and used by plaintiff in said river that it is unsafe to go upon or near said dam for the purpose of making necessary repairs thereto, and therefore plaintiff will have to construct a new dam; that in making the search for said dead body it was not necessary for the men to trample down and injure plaintiff's crops, but such search could have been made along and near the bank of the river without injury to plaintiff; that plaintiff presented his claim for damages to the city council, and the same had not been allowed. There are some other allegations, but they are not material for the purposes of this decision. The plaintiff, upon substantially the foregoing allegations, demanded judgment for the sum of $ 614, his damages, and for costs. To this complaint the defendant demurred, upon the sole ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and, the plaintiff electing to stand on his complaint, the court dismissed the action, from which judgment of dismissal this appeal is prosecuted, and error is predicated on the action of the court sustaining the demurrer and in entering judgment of dismissal.

No question is presented in respect to the sufficiency of the complaint, if the defendant city can be held liable as a matter of law for the acts...

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18 cases
  • DeBry v. Noble
    • United States
    • Utah Supreme Court
    • January 27, 1995
    ...the exercise of a proprietary function but not for those committed in the exercise of a governmental function. See Gillmor v. Salt Lake City, 32 Utah 180, 89 P. 714 (1907); Sehy v. Salt Lake City, 41 Utah 535, 126 P. 691 (1912); Alder v. Salt Lake City, 64 Utah 568, 231 P. 1102 (1924); Roll......
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    • Utah Supreme Court
    • May 1, 1989
    ...the exercise of a proprietary function but not for those committed in the exercise of a governmental function. See Gillmor v. Salt Lake City, 32 Utah 180, 89 P. 714 (1907); Sehy v. Salt Lake City, 41 Utah 535, 126 P. 691 (1912); Alder v. Salt Lake City, 64 Utah 568, 231 P. 1102 (1924); Roll......
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    ...Jackson v. Harries, 65 Utah 282, 236 P. 234, 236-37, 238 (1925) (damages sustained on basis of unlawful trespass); Gillmor v. Salt Lake City, 32 Utah 180, 89 P. 714 (1907) (action for damages for a trespass to property); but see Wright v. United States, 963 F.Supp. 7, 19 (D.D.C. 1997) (pres......
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    ...somewhat broader than required by the fact situation there involved. 1 Sehy v. Salt Lake City, 41 Utah 535, 126 P. 691; Gillmor v. Salt Lake City, 32 Utah 180, 89 P. 714; Rollow v. Ogden City, 66 Utah 475, 243 P. 791; Bingham v. Board of Education of Ogden City, Utah, 1950, 223 P.2d 432; Ni......
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