McAuliffe v. City of Victor

• Decision Date: 10 September 1900
• Citation: 62 P. 231,15 Colo.App. 337
• Parties: McAULIFFE v. CITY OF VICTOR.
• Court: Colorado Court of Appeals

62 P. 231

15 Colo.App. 337

McAULIFFE v. CITY OF VICTOR.

Court of Appeals of Colorado

September 10, 1900

Error to district court, El Paso county.

Action by Patrick McAuliffe against the city of Victor. Judgment for defendant on demurrer to complaint, and plaintiff appeals. Affirmed.

Scott Ashton, for plaintiff in error.

Daniel A. Ferguson and Albert S. Frost, for defendant in error.

BISSELL P.J.

This is measurably, if not wholly, a case of first impression in this jurisdiction. I am quite clear that professional opinion generally would, at first blush, concur with my original impressions of municipal responsibility in this class of cases. The whole trend, and almost the entirety, of adjudication is against it. The object of the action is to compel the city of Victor to respond in damages for injuries received by the plaintiff through the alleged negligent acts of the city authorities. The case comes up on error to a judgment rendered on demurrer, and the cause of action is deducible only from the pleading, wherefrom it appears McAuliffe had been arrested by a police officer for a violation of an ordinance of the town, and locked up in the calaboose. Later another violater of an ordinance was arrested, and put into a cell quite a distance from the apartment in which McAuliffe had been confined. As near as we can gather from the pleading, several persons were confined where McAuliffe was, though the drunken man was put into an independent cell. The intoxicated person in some way undisclosed, set fire to his bedding, which communicated with the building, and the fire spread to the apartment where the plaintiff had been put. It is charged that there was no water by which they could put the fire out and that nobody was around to look after the calaboose, and McAuliffe was, as he alleges, severely burned, and very much injured by the smoke which he inhaled; and the result of all these things was a very substantial injury to his person and to his health. For this he brings suit.

Negligence of course, is the gist of this, as of all other actions in tort against cities. We must presume, for the purposes of the decision, that the plaintiff sustained the injuries of which he complains, because, if the city can ever be held in cases of this sort, the plaintiff stated enough to enable him to maintain his suit. If the action was against the county, or against the state, an unbroken current of authority would deny his right to recover. Counsel--as have the courts in one or two cases--attempt to draw a distinction between suits against cities and actions against a state or a county as a part of the sovereignty which are not held to be liable because of the negligence of the agents, and this on the general hypothesis that municipalities are not parts of the governmental organization, but are organized and exist solely and wholly for the benefit of the inhabitants within its boundaries, and the powers conferred are granted for their benefit; and when they attempt to exercise these powers they are held to a somewhat strict accountability for the due performance of the extraordinary authority which statutes generally give cities. Courts have gone a long way in holding cities liable for the negligent acts of their agents, and they are always holden wherever the acts which are being done, or attempted to be done, or permitted to be done, are acts for the benefit, as perhaps it may be permissible to say, of the individuals who are inhabitants of the municipality. It is on this general principle that a city is held liable for the care of its streets and sidewalks, for negligence or carelessness in the construction of its sewers and drains, and probably as to sewers wherever there is a defect in the original plan of which they ought to be advised, though they are not liable for defective judgment, or for insufficiency in size. This general statement shows, in the main, the course and general results of adjudication on this subject. Whenever we approach the other field, which only concerns the exercise by the municipality of the judicial or governmental authority which may have been the subject of power granted, we find the cases almost universally hold cities are not liable for injuries resulting from negligent acts. The cases proceed on the hypothesis that acts of this nature are for the benefit of the public as...