Moulton v. City of Fargo

• Decision Date: 09 May 1918
• Citation: 167 N.W. 717,39 N.D. 502
• Parties: MOULTON v. CITY OF FARGO.
• Court: North Dakota Supreme Court

39 N.D. 502

167 N.W. 717

MOULTON

v.CITY OF FARGO.

Supreme Court of North Dakota.

Nov. 27, 1917.

On Rehearing, May 9, 1918.

Syllabus by the Court.

In maintaining a free dumping ground a city is held to be exercising a governmental function.

On Rehearing.

The charge of ten cents per load to those who wish to use the public teams for the purpose of conveying their refuse to a public dump does not in itself commercialize the enterprise so as to make the maintenance of such dump a private or corporate enterprise.

It is not in itself a public nuisance to maintain a place where garbage and refuse is burned, and without proof of offensive odors, smoke, or gas, or similar injuries, and this in a populous district which is affected thereby, or where there is the danger of fire spreading to neighboring property.

Where a city maintains a public dump for a public, and not a commercial, purpose, it is engaged in a public enterprise, and is not liable for the negligence of the caretaker thereof in directing persons where to dispose of their refuse.

The immunity of a municipal corporation on the ground that it is engaged in a governmental enterprise does not alone apply to cases where public health is concerned. Public safety and the safety of the property of the community are just as much matters of governmental cognizance.

The prevention of the scattering of loose papers upon the streets and the burning of them in public places in a city, or even the burning of papers and refuse in the furnaces of buildings, which may result in dense smoke, and the carrying through the chimneys burning pieces of papers and the communication of sparks, is a duty which is essentially public in its nature.

There is no reason why a liability to a private action should be imposed when a municipality voluntarily enters upon a public and beneficial work and to withhold it when it performs, the service under the request of an imperative law.

Appeal from District Court, Cass County; A. T. Cole, Judge.

Action by Dan Moulton against the City of Fargo. Judgment for plaintiff, and defendant appeals. Affirmed.

Grace, J., dissenting.Spalding & Shure, of Fargo, for appellant. Carmody, Louden & Mulready and V. R. Lovell, all of Fargo, for respondent.

ROBINSON, J.

This is an appeal from a judgment for $500 recovered against the city for injury. The complaint avers that, pursuant to duties by law imposed, the city kept and supervised a dumping ground, that plaintiff hauled to the ground a load of garbage consisting mainly of dry loose paper, and dumped the same as directed by the city superintendent of the ground, and that when dumping a smoldering fire flashed up and burned him.

The case presents two questions, namely: (1) Is there evidence to sustain the verdict? (2) Is the city liable for the alleged negligence?

As the evidence shows, by direction of the superintendent the plaintiff drove his load to the south and windward side of the dump, where there was no fire and no sign or indication of fire. There was a smoldering fire 30 or 40 feet to the north, but, as a brisk wind blew from the south, the smoldering fire was not in the least dangerous, and it was not the cause of the injury. The plaintiff had his load about two-thirds off, and was in a stooping position, when in a twinkling a flame flashed up and burned him. He says: “All at once it suddenly came like an electric flash.”

Of course, to produce the flame there must have been some adequate cause. There must have been an explosive gas or some material saturated with kerosene or benzine; there must have been some flame or fire, such as a burning match or a lighted cigar. The chances are ten to one that such material was in the load of garbage, and that by accident in throwing out the garbage a stray match was ignited. It is certain such an explosion was never caused by the burning of papers or by any smoldering fire, and the inflammable gaseous material which caused the explosion must have been contained in the load. Hence the injury was not caused by the negligence of the city or its superintendent.

[1] In regard to the liability of a city for negligence in the keeping of a dumping ground the decisions are in conflict. By statute the city has power “to regulate and prevent the throwing or depositing of ashes, offal, dirt, garbage, or any other offensive matter in, and to prevent injury to, any street, avenue, alley, or public ground.” It may regulate the same by rules and ordinances, and doubtless, to accommodate the public, it may establish and maintain a free dumping ground. That is a matter of discretion, and the better rule is that the city is not liable for negligence in maintaining a free dumping ground for the public good and as a matter of public service and convenience. The rule is that no legal obligation arises from the offer and acceptance of a gift or gratuity. There is reason and wisdom in the adage which forbids the looking of a gift horse in the mouth. When a city goes to the expense of keeping a free dump, it is done either as a governmental duty and function or as a pure accommodation to the dumpers and the public. It is a mere gratuity and convenience for the benefit of the dumper. He does not have to use it. He may haul his garbage out of the city. Hence the law does not give an action for negligence in superintending or in failing to superintend a gratuitous dump. A city is under no obligation to provide a dumping place. It may do it and leave the place without any superintendent or it may employ a superintendent without incurring liability for his absence or mere neglect. The greater power includes the less. By employing a superintendent to aid or direct the dumpers a city does not insure them against accidents.

Judgment reversed, and action dismissed.

BRUCE, C. J., and CHRISTIANSON and BIRDZELL, JJ.

We concur in the reversal of the judgment, but we express no opinion as to the origin of the fire. In our judgment, this case is controlled by the case of Montain v. City of Fargo, 166 N. W. 416.

GRACE, J., dissents.

On Rehearing.

BRUCE, C. J.

In a petition for rehearing and on the reargument held thereon the plaintiff and respondent has contended that this court erred in maintaining that the case at bar was controlled by the prior decision in Montain v. City of Fargo, 166 N. W. 416. Respondent asserts that:

“The Montain Case involves the construction of a contract for the removal of kitchen garbage, a notoriously unsanitary commodity, the accumulation of which is notoriously detrimental to health.”

In it he asserts:

“Public health agencies are at all times in evidence, an ordinance relating exclusively to the removal and disposition of kitchen garbage, a contract to be performed under the direction and supervision of the commissioner of health, teams, equipment, and men to be acceptable and satisfactory to the health commissioner, the garbage in course of removal under these agencies, on the way at the time to the municipal incinerator, an instrumentality provided under the health powers of the municipality for the destruction of unhealthful and noxious substances.”

“In the case at bar, on the other hand,” he maintains that “the city of Fargo was not operating or maintaining an instrumentality designed primarily for the protection of the public health. * * * Any connection between the dumping ground and the question of public health was, at most, secondary and incidental. As a matter of law, the city is charged with the duty of keeping its streets free from obstructions and agencies that interfere with public travel and locomotion. As a matter of municipal pride, it is interested in preventing the deposit on its highways and public thoroughfares of débris, offal, dirt, and other offensive matter, not necessarily inimical to the public health, but unpleasant to the eye and an obstacle to the free passage of its inhabitants. The authority conferred by law to keep its streets free from obstructions carries with it, under the uniform holding of the courts, the accompanying obligation to do so, or to become liable for any injury resulting from its failure. In the commission system of government which obtains in Fargo this authority is granted in subdivision 9 of section 3818, Compiled Laws 1913, defining the commission's general powers as follows: ‘To regulate and prevent the throwing or depositing of ashes, offal, dirt, garbage or any other offensive matter in, and to prevent any injury to, any street, alley avenue or public ground.’ And in subdivision 5 of the same section, granting the power, among other things, ‘To prevent and remove obstructions' on the streets or other highways or public grounds. The association in subdivision 9 of the power to prevent the deposit of offensive matter with the power to prevent injury to streets and public grounds shows clearly the legislative intent to provide primarily for the protection of the streets and public grounds. It is not a health protection authority primarily, but a street protection authority. The health protection authority, so far as the streets are concerned, is furnished in section 3820, Compiled Laws 1913, empowering the commissioner of health ‘to cause the removal of all objects detrimental to health.’

It was for the purpose of carrying out the authority to keep its streets and public grounds clean and in order that the city established the dump ground in question. At the time the accident to the respondent occurred it did not use the dump ground for the destruction of unsanitary substances. It used its incinerator for that; or, if it did not, it ought to have. It used the dump ground to hold the refuse which it had prohibited the public by ordinance appearing in the record from dumping on the streets or public places: First, to shield itself from the liability which might result from an injury through an accumulation on the streets or public places; or, second, to satisfy the civic pride of its inhabitants in...