Pullen v. City of Eugene
| Citation | 77 Or. 320,147 P. 768 |
| Parties | PULLEN v. CITY OF EUGENE. [d] |
| Decision Date | 20 April 1915 |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Lane County; Lawrence T. Harris, Judge.
On motion for rehearing. Motion denied, and former opinion (146 P. 822) affirmed.
L. M. Travis and A. K. Meck, both of Eugene, for appellant. Skipworth & Lewis, of Eugene, for respondent.
In a petition for rehearing it is maintained that, though the charter of the city of Eugene confers upon the common council authority to repair a street and to defray the expense thereof either by taxing all the nonexempt property in the municipality or by imposing upon the premises specially benefited an assessment for the improvement made (Special Laws Or. 1905, p. 255, c. 7, § 48, subd. 51), the mayor and councilmen upon whom such obligation primarily devolves are not liable for any injury sustained by reason of their nonfeasance in failing to discharge that duty, nor are they responsible for the misfeasance of their subordinates, since the officers particularly designated receive no compensation for their services. Id. § 34.
The case relied upon to support the principle asserted is Nowell v. Wright, 3 Allen (Mass.) 166, 80 Am. Dec 62, which was an action to recover damages sustained by the plaintiff's wife by falling into a river at night, in consequence of the negligence of the defendant, a bridge tender, who, while operating the draw of the span, failed to shut the gates thereat or to hang out lanterns as warnings of danger. The court, having found that the appointment of the keeper of the bridge was not honorary, nor that his services were gratuitous, determined that, as a public officer, he was responsible for his acts of misfeasance, on the ground that his labor was voluntary and attended with compensation, and his duty was entire, absolute, perfect, and personal, and not only were his services such as he was under obligation to perform, but he was also clothed with ability to discharge the duty both in respect to the means at his command and the legal authority to act, irrespective of superior officers. That case has been cited as a recognized authority by the Supreme Judicial Court of Massachusetts in several of its decisions, but we have not found an instance in which the want of compensation by an officer for the performance of the services required of him has been considered as a prerequisite to the liability imposed. The rule so adopted in that state has been adhered to, but the decisions of that court have been put on other grounds. Thus in Moynihan v. Todd, 188 Mass. 301, 305, 74 N.E. 367 (108 Am. St. Rep. 473), in referring to the preceding case relied upon herein, it is said:
In Bartlett v. Crozier, 17 Johns. (N. Y.) 439, 450, 8 Am. Dec. 428, it was held that a civil action would not lie against an overseer of highways by an individual who had sustained an injury in consequence of the negligence of such officer in failing to keep a bridge in repair. In deciding that case, Chancellor Kent observes:
"When the laws renders a public officer liable to special damages for neglect of duty, the cases are those in which the services of the officer are not uncompensated or coerced, but voluntary and attended with compensation, and where the duty to be performed is entire, absolute, and perfect."
The case last mentioned is referred to in Adsit v. Brady, 4 Hill (N. Y.) 630, 632, 40 Am. Dec. 305, where it is said:
"When an individual sustains an injury by the misfeasance or nonfeasance of a public officer, who acts or omits to act contrary to his duty, the law gives redress to the injured party by an action adapted to the nature of the case."
In Robinson v. Chamberlain, 34 N.Y. 389, 396, 90 Am Dec. 713, it was ruled that a contractor who, pursuant to law, had been employed by the state and received a compensation for performing a public duty, was liable to any person sustaining special damage in consequence of his failure to...
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