Hjorth v. Whittenburg

• Decision Date: 11 March 1952
• Docket Number: No. 7711,7711
• Citation: 121 Utah 324,241 P.2d 907
• Parties: HJORTH et al. v. WHITTENBURG et al.
• Court: Utah Supreme Court

Page 907

241 P.2d 907

121 Utah 324

HJORTH et al. v. WHITTENBURG et al.

No. 7711.

Supreme Court of Utah.

March 11, 1952.

Clinton D. Vernon, Atty. Gen., J. Lambert Gibson, Deputy Atty. Gen., J. Richard Bell, Asst. Atty. Gen., for appellants.

George S. Ballif and Ballif & Eggertsen, Provo, for respondents.

CROCKETT, Justice.

The question here involved is: Where the Utah State Road Commissioners acted in good faith to improve a highway, are they personally liable for consequential damages to adjacent property? We hold they are not.

In connection with certain improvements and changes in Highway U. S. 89, the grade of the road in front of the plaintiffs' properties just south of Mapleton, Utah County, was raised substantially above the level of the contiguous ground ranging from zero to as much as four feet in one area. Where any of the property of adjoining landowners was actually taken in the widening and improvement program, condemnation proceedings were brought. None of the property of any of these plaintiffs is in fact included or used in widening the highway or raising the grade. Accordingly, they were not made defendants in the condemnation proceedings. Their claim for recovery is based upon consequential damages alleged to result from the raising of the highway and thus detracting from the accessibility of their property.

Plaintiffs maintain that unless they are permitted recovery against the Road Commissioners personally, they are effectively foreclosed from any redress because, not being made parties to the condemnation proceedings they could not obtain recompense therein, and they cannot sue the State because of its sovereign immunity.

Plaintiffs first secured a temporary order restraining the defendants from proceeding with the road project and sought to have it made permanent at least until such time as their damages were assessed. Prior to the trial, the court allowed the plaintiffs to amend their pleadings to include a count for damages. When the matter was heard, the evidence indicated that the work on the highway had been practically completed, except for certain clean-up work, by the time the injunction issued. The court awarded judgment against the Road Commissioners personally for loss of value to the plaintiffs' property.

An incidental question is raised by appellants' claim that the trial court erred in allowing the plaintiffs to amend their complaint to include damages, since plaintiffs' original complaint was in equity for an injunction, and that such amendment was a change in the theory of the cause of action which is not permissible. This contention is not sound; the amendment did not import into the case a new and different cause of action; and was therefore permissible. Hartford Accident & Indemnity Co. v. Clegg, 103 Utah 414, 135 P.2d 919; Utah Rules of Civil Procedure. Rule 8(e)(2) provides: 'A party may set forth two or more statements of a claim or defense alternately * * * also * * * as many separate claims or defenses as he has regardless of consistency and whether based on legal or on equitable grounds or on both. * * *' and Rule 15 provides in part: '(a) * * * A party may amend his pleading * * * and leave shall be freely given when justice so requires. * * *' The trial court correctly allowed the amendment. Failure to have done so in order that the parties could fully litigate the controversy between them including the matter of damages would have been error.

We pass to the main question: Are the members of the State Road Commission, individually liable for damages arising out of the performance in good faith of duties imposed upon them and authorized by law? As above indicated, there is in this case no imputation of malice, bad faith or negligence on their part.

This court has held that the individual members of the Road Commission may be enjoined from proceeding to take or damage private property without first providing for just compensation to the owners. State, by State Road Comm. v. District Court, Fourth Judicial District, 94 Utah 384, 78 P.2d 502. To the effect that an arm of the State may be enjoined, see also Shaw v. Salt Lake County, Utah, 224 P.2d 1037. The question whether the Commissioners may be enjoined from proceeding with their duties where consequential damage will result to abutting property owners is not present here, for the reason that in this case the work causing the consequential injury is, and was at the time of trial, an accomplished fact, rather than merely being threatened.

The trial court relied to a considerable extent upon the case State, by State Road Comm. v. District Court, Fourth Judicial District, supra, which involved an injunction against individual members of the Road Commission, and some of the language therein which seems to indicate that the commissioners may be sued individually for damages. We think, however, that this dicta is not the true rule, for reasons which will hereinafter appear. In fact, the dissenting opinion of Mr. Chief Justice Wolfe therein foreshadows and suggests the holding in this case.

In the case of Gresty v. Darby, 146 Kan. 63, 68 P.2d 649, 651, the Kansas Supreme Court said: 'It is the general rule of law that state or municipal officials, performing that duties imposed upon them by statutes * * * and exercising in good faith the judgment and discretion necessary therefor, are not liable personally in damages for injuries to private individuals resulting as a consequence of their official acts. * * *'

This rule is approved in the case of Wilbrecht v. Babcock, 179 Minn. 263, 228 N.W. 916; and Lutes v. Thompson, 193 Okl. 331, 143 P.2d 135; and is announced in the following language in an annotation in 90 A.L.R. 1482:

'Highway officers performing ministerial acts are liable for damages to, or trespass upon, the property of an abutting owner where they act negligently * * *

'They are not, however, personally liable for acts done honestly in the exercise of discretion which the law gives them in constructing or maintaining a highway, although their acts result in a trespass or damage to an abutting owner.'

Among the cases cited therein upholding this rule are the following: Nelson v. Babcock, 188 Minn. 584, 248 N.W. 49, 90 A.L.R. 1472; Pillings v. Pottawattamie County, 188 Iowa 567, 176 N.W. 314; Hovey v. Mayo, 43 Me. 322; and Callender v. Marsh, 1 Pick., Mass., 418.

We are in accord with these authorities. It must necessarily be as they hold, otherwise public officials would be fearful to act at the risk of finding themselves personally liable for acts done in good faith in the performance of their duties. The situation differs materially from one wherein a public official is sought to be restrained from doing an act which will cause injury....