Hawaii County v. Halawa Plantation

• Decision Date: 19 February 1917
• Docket Number: 2748.
• Citation: 239 F. 836
• Parties: HAWAII COUNTY v. HALAWA PLANTATION, Limited.
• Court: U.S. Court of Appeals — Ninth Circuit

239 F. 836

HAWAII COUNTY v. HALAWA PLANTATION, Limited.

No. 2748.

United States Court of Appeals, Ninth Circuit.

February 19, 1917

Wade Warren Thayer, of Honolulu, T.H., and W. H. Smith, of Hilo T.H., for plaintiff in error.

Henry Holmes, Clarence H. Olson, and Paul R. Bartlett, all of Honolulu, T.H. (S. H. Derby, of San Francisco, Cal., of counsel), for defendant in error.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

HUNT Circuit Judge.

Halawa Plantation, Limited, a corporation, defendant in error (hereinafter called plaintiff), brought action against the county of Hawaii, plaintiff in error (called defendant), for damages. After demurrer was overruled defendant made general denial. There was a trial before a jury and judgment for plaintiff. The Supreme Court of the territory affirmed the judgment in Halawa Plantation v. County of Hawaii, 22 Hawaii, 753. Writ of error was sued out.

The substance of the complaint is that certain agents and servants of defendant in pursuance of their employment of repairing, maintaining, and constructing a highway known as the main 'Government Kohala Road,' for the purpose of burning certain rubbish on the highway adjoining land of which plaintiff was lessee carelessly, negligently, and wrongfully kindled a fire on the highway, and neglected to use proper care to prevent its escape, with the result that it extended from the highway to the adjoining land leased by plaintiff and destroyed sugar cane thereon.

The Supreme Court of the territory in its opinion said that if the case were one of first impression, it would be inclined to believe that it would hold otherwise than it did, but that, the rule that a county is liable for injury to private property caused by the negligent acts of its road employes acting within the scope of their employment having been announced in Matsumura v. County of Hawaii, 19 Hawaii, 18, 21 Ann.Cas. 1338, and reaffirmed in the same case in the later decision (19 Hawaii, 496), and the Legislature having met in four regular sessions since the announcement of such rule, without enacting any statute adopting a different one, the court must consider that the Legislature has acquiesced in the rule announced.

The case of Matsumura v. County of Hawaii, 19 Hawaii 18, 21 Ann.Cas. 1338, was decided in 1908. The complaint there alleged that one, Keola, while employed as an agent and servant of the defendant in maintaining and constructing a public highway--

'did willfully, negligently, and in total disregard of the rights and property of the plaintiff, divert the course of a large stream of water then and there flowing in a certain wooden flume; that the said large stream of water so diverted did rush with great force into and undermine a certain large mound or bank, consisting of earth and rocks, which by the force of the water, so diverted as aforesaid, was loosened and with great force struck the store, dwellings, stables, and outhouses of the said plaintiff in such manner that said dwellings * * * were utterly demolished and destroyed to the damage of the plaintiff,' etc.

In a well-considered opinion by Judge Ballou, the court goes back to Russell v. Men of Devon, decided in 1788 (2 Term Reports, 667), usually relied upon as the foundation for the rule laid down by many courts that at common law a county was not liable for torts. We have examined, not only the cases cited in the opinion of the Supreme Court of Hawaii, but many others, and as a result we believe that in the case of Matsumura v. County of Hawaii, supra, the Territorial Court correctly pointed out that Lord Kenyon, in Russell v. Men of Devon, decided as the main point that the body of men sued in the action before him were not associated in a corporate capacity, and therefore that it was inexpedient, if not impossible, to hold the inhabitants at large responsible for the alleged tort. It is undoubtedly true that the case has been applied broadly to sustain a doctrine of general nonliability of a county for tort committed by the agent of the county. But that it should not be used as a basis for so far-reaching a decision is shown by the opinions in the following later English cases, which refer to Lord Kenyon's reasoning: Kent v. Worthing (1882) 10 L.R.Q.B. 118; Borough of Bathhurst v. Macpherson (1879) 4 Appeal Cases Law Reports, 256. In Maguire v. Liverpool Corporation (1905) Law Reports, 1 King's Bench Division, Lord Romer for the court held no action would lie for nonrepair, and cited Russell v. Men of Devon as holding to that effect; and in Whyles v. Bingham Rural Council, (1900) 1 K.B. Div. Law Reports, 45, in an action to recover damages for death alleged to have been caused by the wrongful and negligent acts and defaults of highway authorities, the court held that for nonfeasance there would be no liability, and cited Russell v. Men of Devon for the ruling, although for an act of misfeasance the court said there would be a liability. Russell v. Men of Devon was there looked upon as going to the extent of denying responsibility for nonfeasance. In Weightman v. City of Washington, 66 U.S. (1 Black) 38, 52, 53 (17 L.Ed. 52), the Supreme Court refers to the frequent misapplication of the doctrine of Russell v. Men of Devon, saying:

'Reference is often made to the case of Russell v. Men of Devon (2 Term, 667) as an authority to show that no action will lie against a municipal corporation in a case like the present; but it is a misapplication of the doctrine there laid down. Suit was brought, in that case, against the inhabitants of a district, called a county, where there was no act or incorporation, and the court held that the action would not lie, admitting, however, at the same time, that the rule was otherwise in respect to corporations. But whether that be so or not, the rule here adopted has been fully sanctioned in all the English courts. ' Henley v. The Mayor, etc., of Lyme (5 Bing. 91).

Judge Deady, in Eastman v. County of Clackamas (C.C.) 32 F. 24, also distinguished the decision and regarded the reason for a distinction between an incorporated town and a county as without substantial difference. In Barnes v District...