Johnson v. City of Billings

• Decision Date: 06 February 1936
• Docket Number: 7478.
• Parties: JOHNSON v. CITY OF BILLINGS et al.
• Court: Montana Supreme Court

54 P.2d 579

101 Mont. 462

JOHNSON v. CITY OF BILLINGS et al.

No. 7478.

Supreme Court of Montana

February 6, 1936

Rehearing Denied Feb. 20, 1936.

Appeal from District Court, Yellowstone County; O. F. Goddard Judge.

Action by Helen Johnson against the City of Billings, Yellowstone County, and another. Judgment for plaintiff, and the named defendants appeal.

Affirmed.

Raymond T. Nagle, Atty. Gen., Enor K. Matson, Asst. Atty. Gen., Chris W. Demel and Philip Savaresy, both of Billings, for appellant Yellowstone County.

George S. Smith, of Billings, for appellant City of Billings.

H. C Crippen and H. C. Crippen, Jr., both of Billings, for respondent.

MATTHEWS Justice.

The defendants, city of Billings and county of Yellowstone, have appealed from a judgment against them and one James Steele and in favor of Helen Johnson, plaintiff, for damages in the sum of $3,000 for injuries received when a truck driven by Steele collided with an automobile in which the plaintiff was riding. No question is raised as to plaintiff's right to recover or the liability of Steele, who is not appealing, but the city and county each contend that the court erred in refusing their several motions for judgment of nonsuit and directed verdict.

The pertinent facts adduced to establish liability or nonliability of the city and county are as follows: In 1933 the city of Billings and Yellowstone county entered into an agreement to construct, and commenced the construction of, a waste ditch to be known as "the City-County Waste Ditch," to drain a portion of the west part of the city and, east thereof, the county road. Thereafter, an "emergency" was declared and federal aid secured; the work was taken over by the Civil Works Administration and prosecuted under the supervision and control of the administrator, using laborers from the relief roll, but the city and county furnished machinery, material, and money in aid of the completion of the project. Neither the city nor the county paid any money to the other, but, by a system of bookkeeping, the expenditures of the two were equalized or balanced. The county received benefit from that portion of the ditch constructed east of what is designated "Miller's corner," but not from that west of the corner. At the time of the accident mentioned, the eastern portion of the ditch was completed and work was progressing west of that corner, but the project was an entire one and, in so far as the city and county were taking part in the construction, their interests were joint.

At a point where the ditch was constructed west of the Miller corner, dirt had been "soiled" across the county road, necessitating the leveling of the road and its regraveling. This work was required to be done as a part of the ditch work and to be paid for out of the ditch fund, but was done by the county under the supervision of the county's road superintendent.

Steele was engaged in hauling gravel from the county's gravel pit to the point of repair at the time of the collision. He was regularly in the employ of the county, under the direction and control, and subject to discharge by, the county road superintendent; he was paid by the county, but the amount paid for this work was charged against the ditch account, to be offset by a corresponding expenditure by the city.

The general rule in this country and in England is that cities are liable for the negligence of their employees in the discharge of those public duties concerning the highways within the corporate limits, but that counties are not so liable in the absence of an express statute on the subject. The differentiation is based upon the declaration that the former voluntarily accept charters from the state to govern themselves and to manage their own affairs, and are, therefore, municipal corporations proper, while counties are created by law without consultation of the citizens within their boundaries, and are compelled to perform the duties of the state; these are quasi municipal corporations. Nonliability is declared for the reason that counties are arms or branches of the state government and, as such, partake of or share in the sovereignty of the state and its attributes; consequently, as the sovereign cannot be sued without its consent, its arms or branches are likewise immune, unless liability is specifically imposed upon them by statute. 7 Cal.Jur. 388 and 518; 7 R.C.L. 954, and 13 R.C.L. 309; 4 Dillon on Municipal Corporations (5th Ed.) § 2856; 6 McQuillin on Municipal Corporations (2d Ed.) § 744; Hughes v. County of Monroe, 147 N.Y. 49, 41 N.E. 407, 39 L.R.A. 33.

Recognizing the injustice of this rule, with respect to counties, many of the states have directly imposed liability by statute, while in others the courts have sought to evade the rule by construction. Thus in Pennsylvania, while the rule is that the statute imposing liability must be specifically and definitely on the subject of such liability, the court has held that the statute imposing the duty upon counties to keep the highways in repair impliedly declares them liable for failure to perform this specific duty. Clark v. Allegheny County, 260 Pa. 199, 103 A. 552; McCormick v. Allegheny County, 263 Pa. 146, 106 A. 203. In Tennessee, the rule is discussed and recognized as applicable in cases of injury resulting from failure to keep the highways in repair, but where an injury resulted from the activity of county agents, as distinguished from neglect, it is held that by digging a trench or ditch at the side of the highway, the county created a nuisance and was liable to one injured by falling therein. It is declared that the creation of a nuisance is no part of sovereignty, and that "no individual, natural or legal, has a right to commit a nuisance to the injury of the public or individuals." Chandler v. Davidson County, 142 Tenn. 265, 218 S.W. 222, 224.

We are committed to the rule with respect to cities. Headley v. Hammond Building, 97 Mont. 243, 33 P.2d 574, 93 A.L.R. 794; Nord v. Butte Water Co., 96 Mont. 311, 30 P.2d 809; Remesz v. City of Glasgow, 95 Mont. 595, 28 P.2d 468; O'Donnell v. City of Butte, 65 Mont. 463, 211 P. 190, 32 A.L.R. 1284; Id., 72 Mont. 449, 235 P. 707. And we have recognized a distinction between cities on which the Legislature has conferred the power of local self-government and legislation which import "sovereignty," and counties, with respect to the power of the Legislature to compel participation in state insurance. State ex rel. City of Missoula v. Holmes, 100 Mont. 256, 47 P.2d 624, 100 A.L.R. 581. But it will be noted that, in exercising the functions mentioned, it is there declared that the city is acting in its proprietary capacity, and anything herein said with regard to the right to sue a city so acting does not conflict with that opinion.

These declarations have been repeated, and we have held that, in maintaining a fire department, a city acts in its proprietary capacity, but it is declared that, while firemen are actually engaged in the performance of their duties as such, they act in a governmental capacity, and, on grounds of public policy and necessity, the city is not liable for their torts. State ex rel. Kern v. Arnold, 100 Mont. 346, 49 P.2d 976, 100 A.L.R. 1071.

It may be that, on the ground of public policy, we might hold that, ordinarily, in the repair of highways the county acts in its governmental capacity and should be immune from liability for the tortious acts of its servants in this regard, but that question will be shown to be not before us, and is specifically reserved.

Counsel for the defendant county assert that we are committed to the rule of the immunity of counties from suit and nonliability for damages for injuries inflicted, regardless of the capacity in which a county was acting at the time. Let us see whether this is so. In Smith v. Zimmer, 45 Mont. 282, 125 P. 420, 427, it is true Mr. Justice Smith said, "The nonliability of the county itself rests upon an entirely different principle from that which is invoked in an attempt to show that the commissioners cannot be made to respond in damages personally," and Mr. Chief Justice Brantly, dissenting, used the phrase, "The county is not liable." But the question of liability of a county was not before the court and was not there decided. The action was against the commissioners and the road supervisor only.

On the theory that a county cannot be sued because a "sovereign" cannot be sued without its consent, we are not precluded from holding a county liable for the torts of its employees, for the Legislature has specifically granted to counties the power to "sue and be sued" (section 4444, Rev. Codes 1921), and has provided that a suit against a county must be brought in that county (section 9095, Id.), which section is held to permit suits generally against a county. Good Roads Machinery Co. v Broadwater County, 94 Mont. 68, 20 P.2d 834. Under these statutes this court has recognized the right of citizens to sue a county on divers grounds of wrong committed ( Edwards v. Lewis and Clark County, 53 Mont. 359, 165 P. 297; Heckman v. Custer County, 70 Mont. 84, 223 P. 916; In re Claims of Hyde, 73 Mont. 363, 236 P. 248; Franzke v. Fergus County, 76 Mont. 150, 245 P. 962; Lewis v. Petroleum County, 92 Mont. 563, 17 P.2d 60, 86 A.L.R. 575), but has never passed directly on liability for torts. The nearest approach to an authority on the subject in this state is the opinion in Sullivan v. Big Horn County, 66 Mont. 45, 212 P. 1105, wherein it is held that the above statutes do no more than create the capacity to sue and be sued, and have no greater effect, and that authority to maintain an action for damages for unlawful detainer, if it exists, must be found in the statute, and, not...