Mark v. City of Honolulu, Corp., 2873.

• Decision Date: 16 September 1953
• Docket Number: NO. 2873.,2873.
• Citation: 40 Haw. 338
• Parties: ARCHIBALD Y. F. MARK, NORA MARK, JEN FUI MOO AND EVA MOO v. CITY AND COUNTY OF HONOLULU, A MUNICIPAL CORPORATION, THE HAWAIIAN ELECTRIC COMPANY, LIMITED, AND THE MUTUAL TELEPHONE COMPANY.
• Court: Hawaii Supreme Court

40 Haw. 338

ARCHIBALD Y. F. MARK, NORA MARK, JEN FUI MOO AND EVA MOO

v.CITY AND COUNTY OF HONOLULU, A MUNICIPAL CORPORATION, THE HAWAIIAN ELECTRIC COMPANY, LIMITED, AND THE MUTUAL TELEPHONE COMPANY.

NO. 2873.

Supreme Court of the Territory of Hawai‘i.

RICHARD L. CARTER AND MARIE HANSON CARTER

v. CITY AND COUNTY OF HONOLULU, A MUNICIPAL CORPORATION.NO. 2874.Argued June 17, 1953.Decided September 16, 1953.

ERROR TO CIRCUIT COURT FIRST CIRCUIT, HON. J. E. PARKS, JUDGE.

Syllabus by the Court

The City and County is liable to a private individual for damages by fire caused by the negligence of its officers, agents or employees in permitting electric current to escape from its street-lighting system and thereby flow into and upon his private property.V. T. Tashima, Deputy City & County Attorney ( F. A. McKinley, Acting City & County Attorney, with him on opening brief; J. M. Morita, City & County Attorney, with him on reply brief), for plaintiff in error.

N. W. Y. Char ( Sau Ung Loo Chan and D. E. Metzger with him on the brief) for defendants in error.

TOWSE, C. J., LE BARON AND STAINBACK, JJ.

OPINION OF THE COURT BY STAINBACK, J.

These two cases were consolidated for trial as they involved the same facts as to the alleged negligence of the defendants.

The original complaints allege that the City and County of Honolulu maintained in the conduct of its business as a municipal corporation an electric-light system for the purpose of lighting the public highway, to wit, Kamehameha highway at Punaluu, Oahu; that the city negligently maintained the insulators on light fixtures located on certain poles in that the same were so corroded that electricity leaped out into the lighting fixture and from there arched to Mutual Telephone Company's drive hook located on the same pole, thereby causing heavy electric current to travel through the telephone wire to the telephones in plaintiffs' houses at Punaluu causing fires which burned plaintiff's house in the one case to the ground and in the other caused certain damage.

The city demurred to the complaints in each case claiming governmental immunity as the complaints showed that the alleged negligence of the city occurred in the performance of a governmental function, to wit, in the operation of a municipal street-lighting system.

The lower court overruled the demurrer and written exceptions were duly filed. Both cases were tried jury waived.

After plaintiffs' and defendants' testimony was in, at the request of the judge the plaintiff Mark filed an amended complaint naming the Hawaiian Electric Company, Limited, and the Mutual Telephone Company as additional defendants. There were two counts: the first was based on negligence against the three defendants on the doctrine of res ipsa loquitur; the second alleged that the city negligently maintained the wiring and the light fixtures in the Punaluu area in that the same were so corroded, worn and frayed that the electric current leaked out into the metal parts of the lighting fixtures; that said condition could have been easily ascertained upon reasonable inspection. He also alleged that the Hawaiian Electric Company was negligent in allowing heavy electric current to escape from its main supply lines into the wires of the Mutual Telephone Company leading to plaintiff's house, thereby causing the same to burn; as to the liability of the Mutual Telephone Company the amended complaint alleged that the telephone company was negligent in failing to have the usual protective device installed on the telephone in the plaintiff's house, which device would have prevented the house fire.

Both the electric company and the telephone company consented to enter the case and accepted the evidence that had already been presented at the trial against the City and County. The City and County objected to the amendment of the complaint and the joinder of the new defendants on the ground that at this late stage of the trial the same would be prejudicial to the city. The city demurred to the amended complaint which was overruled.

An amended complaint was also filed in the Carter case but the same did not include the Hawaiian Electric Company and the Mutual Telephone Company as the statute of limitations had run as to these defendants.

The evidence introduced showed that the City and County of Honolulu maintained an electric-light system for the purpose of lighting Kamehameha highway at Punaluu, Oahu; that the porcelain bushing-type insulators which were fixed in the metal housing of a bracket on certain poles, particularly 269, were broken and the wire leading into the bushing was bare and without insulation. This condition permitted the current to escape to the telephone hook on the same pole which held the telephone wire leading into the house; the pole, being damp and saturated with water, was a good conductor from the hook to this wire and the high current caused the insulation of the telephone wire attached to the wall within the home to catch fire and caused the complete destruction of one and damage to four other houses on this party line.

In the Mark case the court found for plaintiffs and against defendants and assessed damages against the City and County of Honolulu in the sum of $21,054.54, against the Hawaiian Electric Company, Limited, in the sum of $2,807.28, and against the Mutual Telephone Company in the sum of $4,210.91.

In the Carter case the court found for the plaintiffs and against the defendant, the City and County of Honolulu, and assessed damages in the sum of $529.42.

The chief question presented is whether the City and County in operating a municipal street-lighting system is exempt from liability for damages caused by negligence in the operation of such system on the theory that it was engaged in a governmental function. Other questions relate to an alleged curtailment of cross examination of the plaintiffs' expert witnesses and also as to permitting an amendment to add the Mutual Telephone Company and the Hawaiian Electric Company as parties-defendant.

Both parties agree that the rule of law is that a municipal corporation is not liable in an action for damages for negligence of its officers, agents and employes, committed while in the exercise of a governmental function, as distinguished from a “corporate” or “ministerial” act. The theory is that the State being sovereign, no suit can be brought against it without its consent and a municipality in performing governmental functions is the agent of the State and, therefore, exempt from suit. (This immunity of a sovereign power is sometimes said to be a survival of the maxim that “The King can do no wrong” but, as stated by Mr. Justice Holmes in Kawananakoa v. Polyblank, 205 U. S. 349, 353, the immunity of a sovereign from suit rests upon no “formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.”)

As to what is a governmental function and what is a corporate or ministerial act of a municipality is a question upon which there is a wide divergence of opinion. The cases are in hopeless confusion and even in the same jurisdiction often impossible to reconcile.

In the recent United States Supreme Court case of Delahite v. United States, decided June 8, 1953, the Court discussed various decisions dealing with municipal liability for torts. That case involved the question of governmental liability under the United States Tort Claims Act giving an individual certain rights to recover from the Federal Government for injuries caused by the negligence of government employees. Delivering the majority opinion of the Court, Mr. Justice Reed made the following comment: “The Government also relies on the body of law developed in the field of municipal liability for torts which deal with discretionary, as opposed to ministerial, acts. Whatever the substantiality of this dichotomy, the cases which have interpreted it are in hopeless confusion; some have used ‘discretionary’ and ‘ministerial’ interchangeably with ‘proprietary’ and ‘governmental,’ while others have rather uncritically borrowed the same terminology from the law of mandamus. But even cases cited by the Government hold that, although the municipality may not be held for its decision to undertake a project, it is liable for negligent execution or upkeep.”

Attempted distinctions are frequently made between “mandatory” and “permissive” powers of municipalities, between “discretionary” and “ministerial” acts, between nonfeasance and misfeasance, but these rules are by no means uniformly followed. These, as well as attempted distinctions between “governmental or public” and “proprietary or private” activities, have been subjected to sharp criticism both by the courts and by legal scholars. Frequently charge for use or profit-taking by the city will induce courts to call an activity “proprietary.” On the other hand, it is said “an incidental pecuniary advantage accruing to a municipality from the performance of a function characteristically public * * * does not transfer a public function into a private one * * *.” (Day v. City of Berlin, 157 F. [2d] 323, 325; Shoemaker v. City of Parsons, 154 Kan. 387,118 P. [2d] 408.)

There are several Hawaiian cases dealing with the question of county and City and County liability for torts. The earliest and leading case is that of Matsumura v. County of Hawaii, 19 Haw. 18, in which the county was held liable where its servants in maintaining and constructing a highway “did willfully, negligently and in total disregard of the rights and property of the plaintiff, divert the course of a large stream of water, then and there flowing in a certain wooden flume, that the said large stream of water so diverted * * * did rush with great force into and undermine a certain large mound or bank consisting of earth and rocks,” which fell and struck and damaged a store,...