Orrock v. South Moran Tp.

• Decision Date: 22 June 1917
• Docket Number: 13911.
• Citation: 97 Wash. 144,165 P. 1096
• Parties: ORROCK v. SOUTH MORAN TP. et al.
• Court: Washington Supreme Court

165 P. 1096

97 Wash. 144

ORROCK v. SOUTH MORAN TP. et al.

No. 13911.

Supreme Court of Washington

June 22, 1917

Department 2. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by James Orrock against the South Moran Township and Spokane County. The action was dismissed as to the county, judgment ran for plaintiff, and defendants appeal. Affirmed.

John B White, Wm. C. Meyer, and Fred J. Cunningham, all of Spokane for appellants.

Mark F Mendenhall and Lloyd E. Gandy, both of Spokane, for respondent.

FULLERTON J.

The plaintiff James R. Orrock received personal injuries by reason of the defective condition of a public highway upon which he was traveling. The highway was outside of the corporate limits of any city or town but was within the corporate limits of South Moran township, Spokane county. He brought an action for damages, joining both the county and the township as defendants. The defendants filed separate demurrers, that of the town ship being overruled, and that of the county sustained, and the action dismissed as to the latter. By leave of court the defendant South Moran township was permitted to file a special demurrer, as follows:

'Comes now the defendant South Moran township, a municipal corporation, and files a supplementary demurrer, specially demurring to the complaint of the plaintiff James R. Orrock on the grounds that the complaint does not state facts sufficient to constitute a cause of action against said defendant, for the reason that at common law a township corporation would not be liable for damages in such a cause of action, and could only be made liable therefor by the existence of some statute, and it will be contended upon the hearing of said demurrer that there is no statute of the state of Washington making the said defendant liable as in said complaint alleged.'

This demurrer was overruled, and the parties went to trial, which resulted in a verdict and judgment in favor of plaintiff. The defendant appeals, assigning as error the overruling of the special demurrer. The statutes of this state, relating to actions by and against public corporations (Rem. Code), read as follows:

'Sec. 950. An action at law may be maintained by any county, incorporated town, school district, or other public corporation of like character in this state, in its corporate name, and upon a cause of action accruing to it, in its corporate character, and not otherwise, in either of the following cases:

'1. Upon a contract made with such public corporation;

'2. Upon a liability prescribed by law in favor of such public corporation;

'3. To recover a penalty or forfeiture given to such public corporation;

'4. To recover damages for an injury to the corporate rights or property of such public corporation.'

'Sec. 951. An action may be maintained against a county, or other of the public corporations mentioned or described in the preceding section, either upon a contract made by such county or other public corporation in its corporate character, and within the scope of its authority, or for an injury to the rights of the plaintiff arising from some act or omission of such county or other public corporation.'

In Kirtley v. Spokane County, 20 Wash. 111, 54 P. 936, we held, overruling a decision of the territorial court to the contrary, that under these sections a county was liable for injuries caused a traveler on the public highway by reason of the defective condition of a bridge. The principle of the case has been since approved in numerous decisions. Lane v. Spokane Falls & N. Ry. Co., 21 Wash. 119, 57 P. 367, 46 L. R. A. 153, 75 Am. St. Rep. 821; Rounds v. Whatcom County, 22 Wash. 106, 60 P. 139; Einseidler v. Whitman County, 22 Wash. 388, 60 P. 1122; Wendel v. Spokane County, 27 Wash. 121, 67 P. 576, 91 Am. St. Rep. 825; Lincoln County v. Fish, 38 Wash. 105, 80 P. 435; Redfield v. School District, 48 Wash. 85, 92 P. 770; Neel v. King County,

53 Wash. 490, 102 P. 396; Howard v. Tacoma School District, 88 Wash. 167, 152 P. 1004.

Township organization was not known in this jurisdiction until the adoption of the state Constitution. By section 4, art. 11, of that instrument, it is provided that the Legislature by general laws shall provide for township organization, under which any county may organize whenever a majority of the qualified electors of such county voting at a general election shall so determine. The Legislature first acted under the power in 1895. Laws 1895, p. 472. The act with the subsequent amendments is found in Rem. Code, at sections 9322-9438. Spokane county organized under the act in 1908. By the act each township when organized becomes a body corporate with power to sue and be sued, to raise such sums of money for the repairs and construction of roads and bridges as they deem necessary, to acquire land containing beds of gravel or quarries of stone needed by the township for road construction, to have the charge of all highways and bridges in the township and the care and supervision thereof,...