Hutton v. Martin

• Decision Date: 09 January 1953
• Docket Number: No. 31867,31867
• Citation: 41 Wn.2d 780,252 P.2d 581
• Court: Washington Supreme Court
• Parties: HUTTON, v. MARTIN.

Page 780

41 Wn.2d 780

252 P.2d 581

HUTTON, v. MARTIN.

No. 31867.

Supreme Court of Washington, en Banc.

Jan. 9, 1953.

Tonkoff & Holst, Yakima, for David L. Martin.

S. E. Chaffee, Sunnyside, Kenneth C. Hawkins, Yakima, for respondent and cross-appellant Ruby Hutton.

Gavin, Robinson & Kendrick, Yakima, Gordon Blechschmidt, Grandview, for cross-respondent.

DONWORTH, Justice.

Plaintiff, as administratrix of the estate of her husband, James T. Hutton, deceased, brought this action for wrongful death against the city of Grandview and its employee, David L. Martin, the driver of its garbage truck, which collided with the deceased's automobile.

The accident occurred on October 14, 1949, near the crest of Judd Hill on a county highway south of Grandview. Defendant Martin had dumped a load of the city's garbage and was returning to the city in a northerly direction. The deceased was driving in a southerly direction. The road was hard surfaced, but did not have a yellow center line. Near the crest of Judd Hill, there was a bridge, with wooden railings, over an irrigation ditch, which crossed under the highway diagonally so that the railing on the east was offset and northerly to the railing on the west side of the highway. There were no eyewitnesses to the accident, except defendant Martin. There was testimony produced by defendants that the deceased had consumed some beer in a local tavern about three hours previously; and that, as he drove up the hill, he was driving over on defendant Martin's side of the highway. Defendant Martin testified that he pulled to the right as far as possible and scraped the wooden railing on the east side of the highway with the bed of his truck. The deceased, nevertheless, struck the left front of the truck three feet over on defendant Martin's side of the highway, and shortly thereafter died.

Plaintiff showed, on the contrary, that defendant Martin, prior to going over the crest of the hill, had been driving rapidly and in the middle of the highway. At the scene of the collision, near the crest of the hill, fresh gouge marks were detected west of the center of the highway (upon the deceased's side of the highway) with intermittent scratches extending therefrom in a widening arc over to the point where the deceased's vehicle stopped after the accident. A tire was missing from the front left rim of the deceased's car when it stopped. Pictorial evidence was introduced supporting the plaintiff's contention that the deceased had been on his own side of the highway.

The factual question to be determined by the jury was which, if either, vehicle was on its own side of the highway.

The jury returned a verdict for the plaintiff against both defendants. The trial court granted a judgment n. o. v. for the city. Defendant Martin appeals from the judgment against him, and plaintiff cross-appeals from a dismissal of the city on the judgment n. o. v.

We first give consideration to respondent's cross-appeal from that portion of the judgment dismissing the action as to the city of Grandview.

The trial court's granting of the city's motion for judgment n. o. v. was based on Krings v. Bremerton, 22 Wash.2d 220, 155 P.2d 493, which fully sustains the court's action. Respondent urges us to re-examine the doctrine of that case and to overrule it.

At least since 1909 all classes of municipalities have had legislative authority to engage in the business of operating certain public utilities. See Rem.Rev.Stat., § 9488 et seq., cf. RCW 80.40.010. As last amended in 1947, Rem.Supp.1947, § 9488, this section enumerated the following public utilities which a municipal corporation may operate:

1. Waterworks 'with full power to regulate and control the use, distribution and price' of water.

2. Sewerage systems and systems and plants for garbage and refuse collection and disposal 'with full jurisdiction and authority to manage, regulate, operate and control the same and to fix the price of service thereof, within and without the limits of the corporation'.

3. Plants and facilities for the manufacture and sale of stone or asphalt products or compositions or other materials which may be used in street construction or maintenance with power to fix the price thereof.

4. Public markets and cold storage plants for the sale and preservation of certain perishable foods.

5. Works, plants and facilities for furnishing gas, electricity and other means of power 'with full authority to regulate and control the use, distribution and price thereof'.

6. Cable, electric and other railways, automobiles, motor busses and auto trucks for the transportation of freight and passengers within the corporate limits with power to fix, alter, regulate and control the fares and rates to be charged for such service.

Of these public utilities authorized by § 9488, the only one that has been held by this court to be a governmental function in the operation of which municipalities are not liable for torts is the collection and disposal of garbage and refuse. Krings v. Bremerton, supra.

There is no immunity from tort liability when a city operates: Waterworks--Russell v. Grandview, 39 Wash.2d 551, 236 P.2d 1061; Sewer systems--Hayes v. Vancouver, 61 Wash. 536, 112 P. 498; Electric plants--Abrams v. Seattle, 60 Wash. 356, 111 P. 168; Street railways--Koch v. Seattle, 113 Wash. 583, 194 P. 572.

The only decision of this court cited in the Krings case, supra, as supporting the holding that there is no tort liability in the operation of a municipal garbage collection system is Hagerman v. Seattle, 189 Wash. 694, 66 P.2d 1152, 110 A.L.R. 1110, which involved a truck operated by the city health department in connection with hospital service. The two cases are plainly distinguishable, since in the former the city was operating a public utility whereas in the latter the city was carrying on a health function which has generally been held to be a governmental function. The Krings case contains no discussion of the distinction between governmental and proprietary functions of a municipality and states no reason for the holding other than it is 'in accordance with the weight of authority'. [22 Wash.2d 220, 155 P.2d 495.]

In City of Seattle ex rel. Dunbar v. Dutton, 147 Wash. 224, 265 P. 729, 731, we declined to extend the doctrine of nonliability beyond the true import of our prior decisions and quoted approvingly the applicable language in Riddoch v. State, 68 Wash. 329, 123 P. 450, 42 L.R.A.,N.S., 251, as follows:

'Municipal corporation enjoy their immunity from liability for torts only in so far as they partake of the state's immunity, and only in the exercise of those governmental powers and duties imposed upon them as representing the state. In the exercise of those administrative powers conferred upon, or permitted to, them solely for their own benefit in their corporate capacity, whether performed for gain or not, and whether of the nature of a business enterprise or not, they are neither sovereign nor immune. They are only sovereign and only immune in so far as they represent the state. They have no sovereignty of their own, they are in no sense sovereign per se. Their immunity, like their sovereignty, is in a sense borrowed, and the one is commensurate with the other. Such is, in effect, the conclusion reached in Hill v. Boston, 122 Mass. 344, 23 Am.Rep. 332, after a most exhaustive review of the authorities, both American and English. The same principle underlies our own decisions. Sutton v. Snohomish, 11 Wash. 24, 39 P. 273, 48 Am.St.Rep. 847; Russell v. Tacoma, 8 Wash. 156, 35 P. 605, 40 Am.St.Rep. 895; Cunningham v. Seattle, 42 Wash. 134, 84 P. 641, 4 L.R.A., N.S., 629; Linne v. Bredes, 43 Wash. 540, 86 P. 858, 6 L.R.A.,N.S., 707, 117 Am.St.Rep. 1068.' (Italics ours.)

In the case at bar, the city of Grandview was charging for the service it rendered, as authorized by § 9488, and was in business at least for the purpose of defraying the cost of the service rendered. Whether the city actually made a profit when viewed from the standpoint of proper accounting practice is immaterial. It was operating a public utility under statutory authority and should be held liable for its torts. Since the legislature provided no immunity when it authorized the operation of municipal utilities, the court should find no implied immunity from tort liability. This court should apply to Grandview's garbage operations the same rule which was applied to the operation of its water system in the recent case of Russell v. Grandview, 39 Wash.2d 551, 236 P.2d 1061, 1063. What we said in that case is applicable here:

'The city urges nonliability on its part upon the theory that in the operation of its water system it was performing a governmental function. The law in this state is to the contrary. Bjork v. Tacoma, 76 Wash. 225, 135 P. 1005, 48 L.R.A.,N.S., 331; Aronson v. Everett, 136 Wash. 312, 239 P. 1011; Shandrow v. Tacoma, 188 Wash. 389, 62 P.2d 1090. We decided in those cases that a city engaged in such an activity acts in it proprietary capacity and is liable for negligence the same as any private corporation engaged in the same business. Cities are limited governmental arms of the state, and when permitted by the state to engage in activities normally performed by private enterprise they to that extent depart from their governmental functions. The fact that some of the water is used in fire protection and in connection with health and sanitation is not material. The negligence of which complaint was made did not arise in the performance of such functions.'

The doctrine of stare decisis should not be applied in this case where to do so would perpetuate error. No property rights would be affected by overruling the only prior decision of this court on this subject, Krings v. Bremerton, supra, and our decisions on the subject of the tort liability of municipal corporations in the operation of public utilities would then become uniform.

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