Morrell v. City of Phoenix

• Decision Date: 09 April 1915
• Docket Number: Civil 1434
• Parties: H. C. MORRELL, Appellant, v. CITY OF PHOENIX, a Corporation, Appellee
• Court: Arizona Supreme Court

147 P. 732

16 Ariz. 511

H. C. MORRELL, Appellant, v. CITY OF PHOENIX, a Corporation, Appellee

Civil No. 1434

Supreme Court of Arizona

April 9, 1915

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Phillips, Judge. Affirmed.

The facts are stated in the opinion.

Mr. R M. Fleming, for Appellant.

Mr George D. Christy, for Appellee.

OPINION

ROSS, C. J.

The appellant, as plaintiff, sued for damages for personal injuries received while in the employ of the defendant city as a driver of one of its street-sprinkling carts.

The negligence charged in the complaint is that the defendant city knowingly furnished plaintiff a fractious, unruly and unmanageable team of horses, and that by reason thereof, on June 15, 1913, the team ran away, dragging him for a considerable distance along the street, until he was thrown upon the ground and the sprinkling-cart passed over his body inflicting permanent and serious injuries. The defendant interposed a general demurrer to the complaint, which was sustained. The plaintiff refusing to amend, judgment was entered dismissing complaint.

The position taken by the city is that its charter exempts it from liability in a case of this kind, and that is one of the points raised and urged under the general demurrer. If this point is well taken, it is not necessary that other points made by defendant be discussed or passed upon. It seems quite certain that it was the intention of the legislature of the territory of Arizona, judging by the language used, that Phoenix should be immune from damages for injuries or loss occasioned by or through the malfeasance, misfeasance or neglect of duty of any of its officers or other authorities. The city received its charter from the territorial legislature in February, 1881. Laws 1881, No. 58. In 1885 the legislature amended the charter (Laws 1885, No. 61), and one of the sections of the amendatory act was section 7 of article 18, which provides as follows:

"The said corporation shall not be liable to anyone, or for any loss or injury to person or property growing out of, or caused by the malfeasance, misfeasance, or neglect of duty of any officer, or other authorities of said city; or for any injury or damages happening to such person or property on account of the condition of any zanja, sewer, cesspool, street, sidewalk or public ground therein; but this does not exonerate any officer of said city, or any other person, from such liability, when such casualty or accident is caused by the willful neglect of duty enforced upon such officer or person by law, or by the gross negligence or willful misconduct of such officer or person in any other respect."

At the time of the accident the affairs of the city were carried on by and through what was known as a common council, consisting of a mayor and four councilmen. By the charter, article 13, section 1 (Laws of 1885), the common council was to have and exercise exclusive control over the streets, alleys, avenues and sidewalks of the city, with the power to clean or otherwise regulate and improve the same. Paragraph 465, Revised Statutes of 1901, also gave to cities and common councils in cities power to light and cleanse their streets, alleys and avenues. The matter of sprinkling the streets -- a necessary step to their cleansing -- was therefore under the control and direction of the common council. It was for them to say whether the streets should be sprinkled, and to design and provide the methods and means to accomplish that end. To the council's lot fell the duty of employing men to do the actual work of sprinkling-carts and with teams to draw the carts. It was the duty of the city to furnish the plaintiff a reasonably safe place in which to work and reasonably safe instrumentalities with which to do this work. The plaintiff contends that this duty of supplying him with reasonably safe instrumentalities with which to prosecute his work was personal to the city, and could not be delegated to others, and that, in contemplation of law, it was the negligent act of the city that caused the plaintiff's injury.

It is the law that the master may not delegate this particular duty to others, and thereby evade responsibility; but that is not upon the theory that he himself is personally negligent, but presupposes negligence in others for whose acts he is responsible. And in this case the act of common council in turning over to the plaintiff an unmanageable team was the act of the city, and, if the council was guilty of negligence in that act, the city was likewise negligent, and probably would be liable in damages but for the exemptions from liability for the malfeasance, misfeasance and neglect of duty of its officers.

The plaintiff further contends that the provisions of section 7, article 18, or the charter, attempting to relieve the city from damages occasioned by the neglect of its officers, is unconstitutional and void. Without enumerating the reasons he assigns to support his contention on this point, we may say that in our search we have found such statutes generally upheld by the courts.

In 28 Cyc. 1343, it is said:

"A city may be specifically exempted from liability by its charter"; citing Parsons v. San Francisco, 23 Cal. 462, which fully supports the text.

In Goddard v. Lincoln, 69 Neb. 594, 96 N.W. 273, where the principle we have was before the court, it was said:

"A city is a creature of the legislature; its rights, duties and liabilities are to be measured by the statute under which it exists. Early in the history of this state a city was held liable for injuries resulting from the defective condition of its streets, on the ground that it had exclusive control of such streets, and the legislature had placed ample means at its disposal to maintain its streets in a safe condition. Omaha v. Olmstead, 5 Neb. 446. The principle announced in that case has since been frequently applied. Aurora v. Cox, 43 Neb. 727, 62 N.W. 66; Lincoln v. O'Brien, 56 Neb. 761, 77 N.W. 76; Beatrice v. Reid, 41 Neb. 214, 59 N.W. 770. As the liability in such cases must rest on some express or implied provision of the statute, it is clear that the legislature may place such limitations upon it as it may deem proper, or, for that matter, take it away entirely."

The legislative power to exempt municipal corporations from liability for the negligence of its officers has been recognized in personal injury cases arising out of neglect to keep streets in safe condition for travel in Oregon under charters whose provisions were very similar to the charter of the defendant city. O'Harra v. Portland, 3 Or. 525; Rankin v. Buckman, 9 Or. 253. In Mattson v. Astoria, 39 Or. 577, 87 Am. St. Rep. 687, 65 P. 1066, a provision in the charter of Astoria exempting both the city and its officers from liability for injuries occasioned by negligence was held to be repugnant to the state Constitution, guaranteeing to every person a remedy by due course of law for injury done him in person, property or reputation, in that such a statute deprived the injured person of a right of action against anyone and left him without remedy. The court, however, used this language:

"That it is within the power of a legislature to exempt a city from liability to persons receiving injuries on account of streets being defective or out of repair is unquestioned" -- citing with approval the O'Harra case.

The court in Wilmington v. Ewing, 2 Penne. (Del.) 101, 45 L.R.A. 79, 43 A. 307, reviewed most, if not all, of the decisions bearing upon the power of the legislature to exempt a municipal corporation from liability for damages suffered because of the negligence of its officers to keep its streets in suitable condition for travel, and announced its conclusion as follows:

"The power to alter, modify or take away the liability of municipal corporations for injuries sustained from defective streets and sidewalks has been frequently exercised by state legislature and sustained by the courts."

But the cases cited by us have not directly involved the power of the legislature to exempt the master from liability for damages occasioned by the neglect of duty or malfeasance or misfeasance of his employees, whereby his servant has been injured. The relation existing between plaintiff and defendant at the time of injury was that of master and servant. The master was the city. It is a creature of the legislature. Its powers, duties and functions are prescribed by law. That law has said:

"The said corporation shall not be liable to anyone [or] for any loss or injury to person or property growing out of, or caused by the malfeasance, misfeasance or neglect of duty of any officer, or other authorities of said city. . . ."

The city could exercise and perform its powers duties and functions only by "officers or other authorities." Whoever furnished the team to plaintiff must have been a person falling within the words "officers or other authorities" of said city for whose "neglect of duty," if any, the city is expressly exempt. The plaintiff accepted employment of defendant knowing that the charter of defendant exempted it from liability for any injury he might sustain while in its employment by reason of the malfeasance, misfeasance or neglect of duty of any of its officers. It is well settled that contracts are to be construed in connection with the law in force at the time of their execution. The law enters into and forms a part of every contract. While, independent of law authorizing it, contracts purporting to exempt the employer from liability for his own negligence or that of his employees have been viewed with disfavor, and correctly and justly so, as being against public policy, deference to the legislature requires a...