Keever v. City of Mankato
| Decision Date | 23 December 1910 |
| Docket Number | 16,282,16,283 - (5,6 [2] ) |
| Parties | DELIA KEEVER v. CITY OF MANKATO; KATE FLANAGAN v. SAME |
| Court | Minnesota Supreme Court |
Petition On Rehearing Filed February 3, 1911
Action by the administratrix of the estate of Lewis Eugene Keever deceased, in the district court of Blue Earth county, to recover $5,000 for the death of her intestate, caused by defendant's alleged negligence in permitting its water supply to become polluted. Another action was brought by the administratrix of the estate of F. R. Flanagan, deceased, to recover the same amount for the death of her intestate caused by the same negligence. The substance of the complaints is stated in the opinion. Defendant demurred to the complaints, and from orders sustaining the demurrers Pfau, J., plaintiffs appealed. Reversed.
Pollution of water supply -- liability of defendant city.
A complaint charged that defendant city negligently allowed the supply in its waterworks system to become polluted with poisonous substances, and large quantities of filth and sewage to escape into and saturate its water supply, by reason whereof plaintiffs' intestates contracted typhoid fever and died as a consequence. On demurrer it is held:
1. The municipality was liable for its negligence in its private or corporate capacity, and was not exempt because it was carrying out a governmental function.
2. Under section 4503, R.L. 1905, an administrator of a person whose death was due to the wrongful act of a municipality may maintain an action against it for damages consequent thereon. Maylone v. City of St. Paul, 40 Minn. 406, and Orth v. Village of Belgrade, 87 Minn. 237, followed.
Chris Carlson and Dunn & Carlson, for appellants.
There is a distinction between the exercise by a municipal corporation of a public or governmental function and a private or corporate function. In the former no liability attaches for negligence, in the latter it does. Board v. Common Council, 28 Mich. 229; Bailey v. Mayor, 3 Hill, 531.
The text writers are all agreed that the classification of private and public functions is the law of the land and in general the furnishing of water for domestic use is a private function, with the attendant liabilities, the same as attaches to an individual engaged in the same business. 1 Dillon, Municipal Corp. (3d Ed.) §§ 66, 67; 5 Thompson, Negligence, § 5829. (Liable for negligence in maintaining water works.) 1 Smith, Municipal Corporations, § 802. (Liable for negligence in furnishing wells and water.) 3 Abbott, Municipal Corporations, § 892 (). Tiedeman, Municipal Corporations, § 327b (). 1 Jaggard, Torts, p. 179; 28 Cyc. § 1289 (). Bailey v. Mayor, supra. Wiltse v. City of Red Wing, 99 Minn. 255; Western v. City, 31 Pa. St. 185; Aldrich v. Tripp, 11 R.I. 141; Esberg v. City, 34 Ore. 282; Wagner v. City, 146 Ill. 139; Illinois Trust & Savings Bank v. City of Arkansas City, 76 F. 282; Judson v. Borough, 80 Conn. 384; Brown v. Salt Lake City, 33 Utah 222; City v. Selz, 202 Ill. 545; Ottersbach v. Philadelphia, 161 Pa. St. 111; Todd v. City, 79 Neb. 671; Davoust v. Alameda, 149 Cal. 69.
The distinction is no more clearly drawn than in the state of Massachusetts. In that state the liability for negligence in maintenance of streets and highways is entirely statutory, and therefore governed entirely by the language of the several statutes. Hill v. City, 122 Mass. 344; Oliver v. City, 102 Mass. 489, 497; Merrimack v. City, 152 Mass. 556; Lynch v. Springfield, 174 Mass. 430; Little v. City, 177 Mass. 114; Collins v. Greenfield, 172 Mass. 78, 80. The law of Minnesota is in harmony with this principle. Snider v. City of St. Paul, 51 Minn. 466, 470; Reed v. City of Anoka, 85 Minn. 294; Powell v. City of Duluth, 91 Minn. 53; Wiltse v. City of Red Wing, supra; Gordon & Ferguson v. Doran, 100 Minn. 343; City of Winona v. Botzet, 169 F. 321.
The city of Mankato was exercising a private function in the operation of its waterworks plant and was liable for negligence. City Charter, c. 9, § 1; c. 6, §§ 15, 16.
An action for death by wrongful act is maintainable against a municipality. R.L. 1905, § 4503; Maylone v. City of St. Paul, 40 Minn. 406; Orth v. Village of Belgrade, 87 Minn. 237.
John W. Schmitt, City Attorney, Harrison L. Schmitt, Samuel B. Wilson and Lorin Cray, for respondent.
It is well settled in the United States, and in this state, that cities as well as counties, townships, etc., are not liable in damages for injuries resulting from the negligence of their officers or agents while engaged in the performance or carrying out of so-called governmental functions, in the absence of statutory provisions making them liable.
To this general rule there is in this state, and some of the other western states, the well-known exception, that cities are held liable for damages arising from their negligence in failing to keep in repair and in a safe condition their public streets, without any statutory provision making them liable therefor. Schigley v. City of Waseca, 106 Minn. 74; Davoust v. Alameda, 149 Cal. 69; City v. Long, 17 Grat. 375; Claussen v. City of Luverne, 103 Minn. 491; Gullikson v. McDonald, 62 Minn. 278; Lane v. Minnesota State Agricultural Society, 62 Minn. 175; Snider v. City of St. Paul, 51 Minn. 466; Hill v. City, 122 Mass. 344.
The city of Mankato in its ownership and operation of its waterworks system is exercising and performing governmental functions. Smith, Modern Law of Municipal Corporations, §§ 269, 270, 271, 273, 779, 780; 1 Abbott, Municipal Corporations, § 146; 3 Abbott, Municipal Corporations, § 2226; Elliott, Municipal Corporations, §§ 146, 306, 321; City v. Braden, 130 Ind. 149; Smith v. Nashville, 88 Tenn. 464; Jacksonville v. Jacksonville (Fla.) 30 L.R.A. 540; Miller v. City of Minneapolis, 75 Minn. 131; Claussen v. City of Luverne, supra; City of East Grand Forks v. Luck, 97 Minn. 373; Springfield v. Village, 148 N.Y. 46; Grube v. City of St. Paul, 34 Minn. 402.
In its ownership and operation of its waterworks system, the city of Mankato is exercising its police power, for and in behalf of the health, safety and general welfare of its inhabitants and the public generally. 2 Abbott, Municipal Corporations, 1142, 1143, also note to section 888; City v. Selz, 202 Ill. 545; Tollefson v. City, 228 Ill. 134; Sp. Laws 1891, c. 47, subc. 9, § 10; Sp. Laws 1891, c. 47, subc. 4, § 29; Evans v. City, 231 Ill. 223; Prime v. City, 192 N.Y. 105; Bryant v. City of St. Paul, 33 Minn. 289; Claussen v. City of Luverne, supra; 1 Farnham, Water & Water Rights, § 146; City v. Braden, supra; Smith v. Nashville, supra; Jacksonville v. Jacksonville, supra; Elliott, Municipal Corporations, §§ 146, 306, 321; Miller v. City of Minneapolis, 75 Minn. 131; Springfield v. Village, 148 N.Y. 46; Green v. Ashland, 101 Wis. 258.
It would not be sound policy to open the door, and permit actions for injuries like these to be maintained, for the reason that the result would be that the city of Mankato, as well as any other city, or cities, liable at any time to have the same misfortune, would be bankrupted thereby. This would result in the destruction of a branch of the government. 23 Am. & Eng. Enc. (2d Ed.) 455; Mechem, Public Officers, 348; Orme v. Kingsley, 73 Minn. 143; McNamara v. Gargett, 68 Mich. 454; Eastman v. Meredith, 36 N.H. 284; Conway v. City, 61 Tex. 10; Stewart v. City, 9 La. An. 461; Dargan v. Mayor, 31 Ala. 469; City v. Long, 17 Grat. 375.
See also cases in this state holding no liability for damages resulting to premises in a city by reason of change of streets prior to amendment of constitution. Russell v. Men of Devon, 2 T.R. 667; Frazer v. City, 186 Ill. 480; City v. Allen (Tex. Civ. App.) 40 S.W. 324; Goodyear v. Brown, 155 Pa. St. 514; 2 Abbott, Municipal Corporations, 1231; Springfield v. Village, 148 N.Y. 46; Hughes v. City, 161 N.Y. 96; Williams v. Town, 130 N.C. 93; Kavanagh v. Barber, 131 N.Y. 211; Thompson, Corporations, § 6276; City v. East, 117 Ind. 126; Wharton, Negligence, § 257; 1 Abbott, Municipal Corporations, 223; 3 Abbott, Municipal Corporations, § 967, p. 2245; Buckingham v. Plymouth, 142 Pa. St. 221.
If it is the law in this state that a municipal corporation can be held liable for injuries resulting from the negligence of its officers, in connection with its ownership and operation of a municipal waterworks, still this complaint does not state a cause of action. Such cause of action died with the plaintiff's decedent. Scheffler v. Minneapolis & St. L. Ry. Co., 32 Minn. 125; R.L. 1905, § 4503; G.S. 1878, c. 77, § 1; Laws 1889, c. 109; Const. Minn. art. 4, §§ 33, 36; Const. Minn. art. 1, § 1; G.S. 1866, c. 34; R.L. 1905, § 2839; Sutherland, Statutory Construction, § 229; R.L. 1905, § 5513; Hutchins v. St. Paul, M. & M. Ry. Co., 44 Minn. 5.
The statute is in derogation of the common law and must be strictly construed. Sutherland, Statutory Construction, §§ 290, 390, 400.
Actions founded on such statutes must strictly conform to them. Such statutes cannot be extended by implication. The relief or remedy provided is not extended to any other person than those mentioned in the statutes. 2 Sutherland, Statutory Construction, §§ 371, 378, 398. 2 Sutherland, Statutory Construction § 558; Wallace v. Lawyer, 54 Ind. 501; Linehan v. City, 109 Mass. 212; ...
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