Holgerson v. City of Devils Lake

• Decision Date: 20 February 1933
• Docket Number: No. 6075.,6075.
• Citation: 63 N.D. 155,246 N.W. 641
• Parties: HOLGERSON v. CITY OF DEVILS LAKE et al.
• Court: North Dakota Supreme Court

63 N.D. 155

246 N.W. 641

HOLGERSON

v.CITY OF DEVILS LAKE et al.

No. 6075.

Supreme Court of North Dakota.

Jan. 14, 1933.

Rehearing Denied Feb. 20, 1933.

Syllabus by the Court.

1. A park district and its board of commissioners, created and functioning pursuant to the provisions of article 24, chapter 49, of the Political Code, being sections 4055 to 4063, inclusive, C. L. 1913, as amended, are engaged in the performance of a public duty and a governmental function, and are not liable in damages for the manner in which their governmental authority is exercised.

2. The individual members of a governmental board are not liable in damages for acts done as members of such board within the scope of their authority in the performance of a duty owing solely to the public.

3. A board of park commissioners is empowered under the provisions of article 24, supra, to construct, maintain, and operate a toboggan slide for the use of the public on grounds not owned by its park district but occupied under lease or license.

Appeal from District Court, Ramsey County; R. G. McFarland, Special Judge.

Action by Gordon Holgerson, a minor, by Jorgen Holgerson, his guardian ad litem, against the City of Devils Lake, the Park Board of the City of Devils Lake, and Elmer Engebretson and others, individually and as members of the Park Board. Demurrers of the defendant City and of the defendant Park Board were sustained, but demurrers of the individual defendants were overruled, and they appeal.

Reversed.

Clyde Duffy, of Devils Lake, for appellants.

J. C. Adamson, of Devils Lake, for respondent.

NUESSLE, C. J.

Plaintiff, a minor, seeks in this action to recover damages for injuries alleged to have been incurred by reason of the negligence of the defendants in the construction, maintenance, and operation of a toboggan slide within the city of Devils Lake. The several defendants demurred to the complaint. The demurrers of the defendant city and of the defendant park board (park district) were sustained. The demurrers of the individual defendants were overruled. The individual defendants appeal from the order overruling their demurrers.

Plaintiff alleges in his complaint that the defendant the city of Devils Lake is a municipal corporation, organized and existing under the laws of the state of North Dakota; that the defendant park board (park district) is an agency of said corporation, duly constituted; that the individual defendants, Elmer Engebretson, Howard Maher, Joe Wickert, Ike Samuelstad, and Arthur Powell, are the duly elected and qualified members of the board of commissioners of the defendant park district, and were such at the time the injuries for which the plaintiff seeks to recover were sustained; that in November, 1931, the defendants caused a toboggan slide to be constructed with public funds within the city limits and opened the same to the public; that the plaintiff, by reason of the negligence of the defendants in the construction, maintenance, and operation of the slide, sustained bodily injuries; that he presented his claim to the city and to the park board, and that said claim was disallowed; that the said toboggan slide was built and located upon premises belonging to the Devils Lake school district, and to which none of the defendants had title; that the erection of such slide upon this property “was wholly unwarranted, not for a legitimate park board activity or purpose and not in pursuance of a governmental agency function or purpose, and a wrongful diversion of public moneys derived from taxation to a purely private enterprise promoted by the defendants and actively promoted and in charge” of the individual defendants. The ground of the demurrers interposed by the several defendants was that the complaint did not state facts sufficient to constitute a cause of action.

In support of their demurrers, the individual defendants urged below, and now urge, that they were members of the board of park commissioners; that in building the toboggan slide they acted as members of said board, and were thus functioning as a public agency in the performance of a governmental act. On the other hand, the plaintiff insists that the building, maintenance, and operation of the toboggan slide were not within the scope of the authority conferred by statute upon the defendants as a park board; that they were not engaged in the performance of any duty imposed upon them as members of the park board; that they were not as such the agents of the city of Devils Lake or of the park district engaged in the performance of a governmental function; and that therefore they are responsible to the plaintiff for the injuries claimed to have been sustained by reason of the alleged negligence.

The kernel of the plaintiff's contention seems to be that the toboggan slide in question, though erected with public funds by the individual defendants purporting to act as a board of park commissioners, was erected and maintained on property not belonging to the park district, and that therefore they were acting beyond the scope of their authority and beyond their jurisdiction, and so cannot claim the immunity to which they would have been entitled had they acted within their authority as a board of park commissioners. This is the position taken by the plaintiff upon this appeal and apparently the position on which he grounded his suit in the district court. The district court adopted this theory, and predicated its order overruling the demurrers of the individual defendants thereon. There is no appeal from the orders sustaining the demurrers of the defendants city and park district, so we are not called upon to consider the propriety of these orders. Nevertheless we are concerned with the questions as to the responsibility of the city and of the park district, inasmuch as these questions must be considered in determining the liability of the board of commissioners and of the individual members thereof.

[1][2] Under the rule established in this jurisdiction, “a municipality is not liable for the tort of its agent committed in the course of the performance of a governmental duty, nor for the manner in which it exercises its governmental authority, nor for the failure to exercise it properly.” Hanson v. Berry, 54 N. D. 487, 209 N. W. 1002, 47 A. L. R. 816. And a park district organized under the provisions of article 24 of chapter 49 of the Political Code, being section 4055 et seq., C. L. 1913, as amended, is a corporate agency. As such it possesses broad and exclusive powers. Fargo v. Gearey, 33 N. D. 64, 156 N. W. 552. These powers are exercised through an elective board of park commissioners, the members of which serve without compensation. And thus functioning the park district and its board of commissioners are engaged in the performance of a public duty and a governmental function. See Norman v. City of Chariton, 201 Iowa, 279, 207 N. W. 134;Hibbard v. City of Wichita, 98 Kan. 498, 159 P. 399, L. R. A. 1917A, 399;Emmons v. City of Virginia, 152 Minn. 295, 188 N. W. 561, 29 A. L. R. 860;Caughlan v. City of Omaha, 103 Neb. 726, 174 N. W. 220;Alder v. Salt Lake City, 64 Utah, 568, 231 P. 1102;Russell v. City of Tacoma, 8 Wash. 156, 35 P. 605, 40 Am. St. Rep. 895;Bernstein v. City of Milwaukee, 158 Wis. 576, 149 N. W. 382, L. R. A. 1915C, 435; 6 McQuillin, Municipal Corporations (2d Ed.) § 2850, and cases cited. But see, also, Norberg v. Hagna et al., 46 S. D. 568, 195 N. W. 438, 29 A. L. R. 841;Byrnes v. City of Jackson, 140 Miss. 656, 105 So. 861, 42 A. L. R. 254;Ramirez v. City of Cheyenne, 34 Wyo. 67, 241 P. 710, 42 A. L. R. 245;Warden v. City of Grafton, 99 W. Va. 249, 128 S. E. 375, 42 A. L. R. 259, and note. Accordingly they are not liable for the manner in which the governmental authority is exercised. Hadler v. North West Agricultural, etc., Association, 61 N. D. 647, 239 N. W. 736; Hanson v. Berry, supra; Anderson v. Board of Education of City of Fargo, 49 N. D. 181, 190 N. W. 807;Moulton v. City of Fargo, 39 N. D. 502, 167 N. W. 717, L. R. A. 1918D, 1108;Montain v. Fargo, 38 N. D. 432, 166 N. W. 416, L. R. A. 1918C, 600, Ann. Cas. 1918D, 826;Vail v. Town of Amenia, 4 N. D. 239, 59 N. W. 1092. And this immunity extends to the individual members of the board so long as they act within the scope of their authority in the performance of a duty owing solely to the public. Antin v. Union High School District, 130 Or. 461, 280 P. 664, 66 A. L. R. 1271, and note. See, also, Warren v. Topeka, 125 Kan. 524, 265 P. 78, 57 A. L. R. 555;Smith v. Iowa City, 213 Iowa, 391, 239 N. W. 29.

[3] Thus the determinative question here is as to whether under the facts set forth in the complaint, it can be said to reasonably appear that the individual defendants were not acting within the scope of their authority as governmental agents in carrying on a public enterprise and function.

Since this question arises on demurrer, all the intendments must be considered in favor of the complaint, and all facts...