Hagerman v. City of Seattle, 26220.

Citation189 Wash. 694,66 P.2d 1152
Decision Date08 April 1937
Docket Number26220.
CourtUnited States State Supreme Court of Washington

Appeal from Superior Court, King County; George B. Simpson, Judge.

Action by V. A. Hagerman and wife against the City of Seattle. From a judgment of dismissal with prejudice, plaintiffs appeal.


Oscar A. Zabel and A. H. Solomon, both of Seattle, for appellants.

A. C Van Soelen, Corp. Counsel, C. C. McCullough, and T. M Alderson, Jr., all of Seattle, for respondent.

STEINERT Chief Justice.

Plaintiffs a marital community, brought suit against the city of Seattle to recover damages for personal injuries to the plaintiff wife, resulting from a collision between a truck, owned by the city and operated by one of its employees, and an automobile in which the plaintiff wife was then riding as a guest. At the conclusion of plaintiffs' case, the defendant challenged the sufficiency of the evidence and moved for a dismissal. The court granted the motion and subsequently dismissed the action with prejudice. Plaintiffs have appealed.

So far as this appeal is concerned, the negligence of the truck driver is conceded. The sole question in the case is whether, at the time of the collision, the respondent city, through its truck driver, was engaged in the exercise of a governmental function.

The facts necessary to present the point under consideration are, briefly, these: The truck was one maintained by the health department of the city. The driver was in the employ of that department. Upon the occasion in question, the driver was on his way from Firlands Sanatorium, which is a hospital for tubercular patients maintained partly by the respondent, and was proceeding toward the business section of the city. In the truck were several empty vegetable crates which were to be returned by the driver to a produce house on Western avenue, also five baskets of clean laundry destined for the city hospital, and a package of culture tubes containing tubercular bacilli which was intended for delivery to the main hospital. The articles were to be delivered to the various points of destination in the order above mentioned. The collision occurred at the intersection of west Eightieth Street and Sixth Avenue Northwest, which is near the northerly limits of the city and a considerable distance from its main business section and from the several places where the deliveries were to be made.

The trial court held that, under these facts, the respondent city was engaged in the exercise of a governmental function and, therefore, was not liable for the negligence of the driver in the operation of the truck. The single assignment of error challenges the correctness of that ruling.

A municipal corporation has a dual character and, consequently, performs a dual function. In its first aspect, it is governmental, public, or legislative; in its second, it is corporate, private, or proprietary. 1 Dillon on Municipal Corporations (5th Ed.), p. 181, § 109; 6 McQuillin on Municipal Corporations (2d. Ed.) p. 758, § 2792; City of Seattle v. Stirrat, 55 Wash. 560, 564, 104 P. 834, 24 L.R.A.(N.S.) 1275.

Proceeding upon this general division of character and functions of municipal corporations, the judicial decisions of this country have, with practical unanimity, declared and upheld the doctrine that municipalities are not liable for the negligence of their officers and employees when engaged in the performance of governmental or public duties, but are liable for their negligence when performing duties consequent upon the exercise, by the municipality, of its corporate or private powers. Illustrative cases from most of the states will be found in the footnotes to sections 2792 and 2793 of the sixth volume of McQuillin's work on Municipal Corporations (2d Ed.), and the same sections in the 1934 supplement thereto.

That doctrine has been consistently followed and upheld in this state in cases of strictly municipal corporations. Russell v. Tacoma, 8 Wash. 156, 35 P. 605, 40 Am.St.Rep. 895; Sutton v. Snohomish, 11 Wash. 24, 39 P. 273, 48 Am.St.Rep. 847; Simpson v. Whatcom, 33 Wash. 392, 74 P. 577, 63 L.R.A. 815, 99 Am.St.Rep. 951; Lynch v. North Yakima, 37 Wash. 657, 80 P. 79, 12 L.R.A.(N.S.) 261; Cunningham v. Seattle, 40 Wash. 59, 82 P. 143, 4 L.R.A.(N.S.) 629; Seattle v. Stirrat, 55 Wash. 560, 104 P. 834, Hewitt v. Seattle,

62 Wash. 377, 112 P. 1084, 32 L.R.A.(N.S.) 632; Riddoch v. State, 68 Wash. 329, 123 P. 450, 42 L.R.A.(N.S.) 251, Ann.Cas.1913E, 1033; Nelson v. Spokane, 104 Wash. 219, 176 P. 149; Hotel Cecil Co. v. Seattle, 104 Wash. 460, 177 P. 347; Franklin v. Seattle, 112 Wash. 671, 192 P. 1015, 12 A.L.R. 247; Whiteside v. Benton County, 114 Wash. 463, 195 P. 519; Stuver v. Auburn, 171 Wash. 76, 17 P.2d 614; Mola v. Metropolitan Park District, 181 Wash. 177, 42 P.2d 435.

Many reasons have been assigned by the various courts for the immunity granted to municipal corporations when acting in a governmental capacity. Among the reasons are the following: (1) The state is sovereign, and the municipality is its governmental agency; since the state may not be sued without its consent, therefore its agent cannot be. (2) The municipality derives no pecuniary benefit from the exercise of public functions. (3) Members of municipal departments in the exercise of public governmental duties are agents of the state and not of the city, and hence the doctrine of respondeat superior has no application. (4) It is necessary for the proper performance of governmental functions that a municipal corporation should not be liable for the negligence of its agents. (5) Municipalities should not be liable for torts committed in the performance of duties imposed by the Legislature, but only for those voluntarily assumed under general statutes. And (6) taxes raised for specific governmental purposes should not be permitted to be diverted to the payment of damage claims.

All of these reasons have been subjected to vigorous attack by various writers of monogrphs and comments appearing in legal periodcials. See 34 Yale Law Journal, pp. 1-45, 129-143, 229-258; 36 Yale Law Journal, pp. 1-41, 759-807, 1039-1100; 20 Columbia Law Review, p. 772; 34 Harvard Law Review, p. 66.

Despite these attacks, addressed to the foundation and wisdom of the rule, the courts have, almost without exception , adhered to the precedent established by the decisions. One court forsook the doctrine for a brief period, Fowler v. Cleveland, 100 Ohio St. 158, 126 N.E. 72, 9 A.L.R. 131; but that case was very soon overruled, and the accepted doctrine was reaffirmed. Aldrich v. Youngstown, 106 Ohio St. 342, 140 N.E. 164, 27 A.L.R. 1497. It may now be said that the doctrine has become fixed as a matter of public policy, regardless of the reason upon which the rule is made to rest, and that any change therein must be sought from the legislature.

In passing, it may be noted that in at least the following instances, the doctrine of immunity does not apply: (1) Where the injury complained of is the taking or damaging of private property for public use, without compensation; (2) where damage or injury has been occasioned through the establishment, maintenance, or permission of a nuisance; and (3) where the right of action is based on the failure of the municipal corporation to use ordinary care in maintaining its streets, sidewalks, and public ways in a reasonably safe condition for travel in the usual modes. We are not, however, here concerned with any of these exceptional instances.

Returning to the thread of our discussion, we proceed upon the basis of the settled doctrine, just outlined, which recognizes and declares a distinction between governmental, or public, duties, and corporate, or private, duties. But the mere statement of the doctrine or rule, does not altogether solve the difficulty attendant upon the problem frequently presented. As many courts, including our own, have from time to time declared, the difficulty lies not in the statement of the governing principles of law, but in their application to particular facts. The question thus arising is whether the act claimed to be negligent is performed in the exercise of governmental or public power, or of corporate private power. Russell v. Tacoma, 8 Wash. 156, 35 P. 605, 40 Am.St.Rep. 895; Simpson v. Whatcom, 33 Wash. 392, 74 P. 577, 63 L.R.A. 815, 99 A.m.St.Rep. 951; Mayne v. Curtis, 73 Ind.App. 640, 126 N.E. 699; Bolster v. Lawrence, 225 Mass. 387, 114 N.E. 722, L.R.A.1917B, 1285; City of Hattiesburg v. Geigor, 118 Miss. 676, 79 So. 846; Harrington v. Greenville, 159 N.C. 632, 75 S.E. 849; City of Nashville v. Mason, 137 Tenn. 169, 192 S.W. 915, L.R.A.1917D, 914.

It is quite apparent that there are certain kinds of public service that only the government can adequately perform. First among these are the administration of justice, the maintenance of peace by the enforcement of the law, the protection of persons and property against the ravages of fire, and the preservation of the public health against sickness and disease. It is in these fields that the principle of immunity from torts has its widest application and place. The case now Before us falls within the field of the department of health.

The safeguarding of the public health is almost uniformly held to be a governmental function, with the result that torts committed by health officers and their agents, in the performance of their duties, do not render the municipality liable.

'In the conservation of the public health in the various methods usually employed, municipal officers act in a strictly governmental capacity, in accordance with the uniform course of judicial judgments, and hence, no municipal liability for injury due to the negligent...

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    ...174; Stevens Pittsburgh, 329 Pa. 496, 198 A. 655; Warden Grafton, 99 W.Va. 249, 128 S.E. 375, 42 A.L.R. 259; Hagerman Seattle, 189 Wash. 694, 66 P.(2d) 1152, 110 A.L.R. 1110, and note; Allas Rumson, 115 N.J.L. 593, 181 A. 175, 102 A.L.R. 648, and note; and Emmons Virginia, 152 Minn. 295, 18......
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