Johnston v. City of Grants Pass

• Decision Date: 21 December 1926
• Citation: 120 Or. 364,251 P. 713
• Parties: JOHNSTON v. CITY OF GRANTS PASS.
• Court: Oregon Supreme Court

251 P. 713

120 Or. 364

JOHNSTON v. CITY OF GRANTS PASS.

Supreme Court of Oregon

December 21, 1926

Department 1.

Appeal from Circuit Court, Josephine County; Charles M. Thomas Judge.

Action by P. S. Johnston against the City of Grants Pass. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with instructions.

This is an appeal from a judgment in favor of the plaintiff against defendant for the sum of $700 as damages caused by a fire. The original complaint was based upon common-law negligence. By permission of the court, the complaint was amended by setting out an ordinance of the city of Grants Pass, the violation of which is the ground of negligence upon which the action was tried. The defendant demurred to the complaint and at the close of plaintiff's case moved for a nonsuit and at the close of taking testimony moved for a directed verdict in favor of defendant. It also requested an instruction for a directed verdict in its favor. The ordinance set out in plaintiff's amended complaint provides for the cutting or burning of wild grass more than three inches high, which may be growing upon any premises within the city or in the streets thereof prior to the 15th day of May of each year, and further provides:

"That if the property owner or person in possession thereof elects to burn the grass upon any premises such burning shall be done upon notice previously given to the chief of the fire department personally, and at such time and in such manner as he shall prescribe and under his supervision, and not otherwise.

"The city of Grants Pass is hereby empowered, and it is hereby made the duty of the street superintendent of said city, in all cases where the owner or occupant of any lot, parcel or tract of real property within said city shall fail to cut and dispose of the grass thereon in accordance with this ordinance, to cut, or cause the same to be cut, and destroy or if said grass be too dry for convenient or economical cutting, then to burn the same, and the expense thereof shall be charged against the lot, tract or parcel of land, and upon entry of such charge in the lien docket of said city, the lien may be enforced by sale of such real property as is otherwise provided for city lien sales of said property within said city.

"Before the street superintendent shall cut or burn grass upon any real property aforesaid, and before the expense thereof shall become a lien thereon, the superintendent shall give notice to the occupant, by posting on said premises a notice stating in substance that if the occupant or owner, as the case may be, shall fail to cut or otherwise destroy the grass upon said premises, street, alley, or sidewalk within ten days from the date of such notice, that the same shall be done by the street superintendent and the expense thereof assessed against said lot, tract or parcel of land.

"If within the period of ten days after the date of the notice provided in the last preceding section, the owner or occupant of any real property therein mentioned shall have failed to cut, destroy or otherwise remove the grass from said real property, street, sidewalk or alley, then and in that event the street superintendent shall forthwith proceed to cut, burn or otherwise destroy the same as may be most economical and expeditious, and shall make his report in writing to the auditor and police judge of said city, therein giving a true account of any notices issued or posted by him, the description of any tracts of real property upon or in behalf of which expense has been incurred in the cutting, burning or other destruction of grass, and the amount of expense incurred as to each tract, lot or parcel of land and the auditor and police judge shall forthwith enter in the city lien docket a description of each lot, tract or parcel of land and the amount assessed against each respectively."

The errors assigned are the order permitting plaintiff to file the amended complaint and overruling the demurrer thereto, denying the motions for a nonsuit and directed verdict, and giving the instructions given by the court. Excepting the error assigned for allowing the amended complaint to be filed, all the other assignments simply raise the question raised by the demurrer to the amended complaint, to wit: That the facts show no liability on the part of the defendant.

James T. Chinnock, of Grants Pass (H. D. Norton and Niel R. Allen, both of Grants Pass, on the briefs), for appellant.

C. F. Pruess, of Grants Pass (C. F. Pruess, of Grants Pass, and Allison Moulton, of Medford, on the briefs), for respondent.

COSHOW, J. (after stating the facts as above).

It was in the discretion of the court to allow the complaint to be amended as was done. The amended complaint was filed before the issues were made up, and the defendant was not injured thereby. Or. L. § 101; Holden v. Gulstrom, 89 Or. 133, 173 P. 672; Zimmerle v. Childers, 67 Or. 465, 136 P. 349.

It has been uniformly held that a city is not liable for the negligent acts of a fireman in the performance of his duty. Firemen are public officers, and are not the agents of the city in its corporate or proprietary capacity. Their duty is governmental, and they represent the public as an arm of the state, for whose acts municipalities are not liable. In Wagner v. Portland, 40 Or. 389, 395, 60 P. 985, 67 P. 300, 302, Mr. Justice Wolverton observed:

"Undeniably, municipalities, when acting through their fire departments in the preservation of property

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