Riddoch v. State

CourtUnited States State Supreme Court of Washington
Writing for the CourtELLIS, J.
Citation123 P. 450,68 Wash. 329
Decision Date01 May 1912

123 P. 450

68 Wash. 329


Supreme Court of Washington

May 1, 1912

Department 2. Appeal from Superior Court, Thurston County; W. P. Bell, Judge.

Action by William Riddoch against the State. Judgment dismissing the action, and plaintiff appeals. Affirmed. [123 P. 451]

J. L. Waller and Reynolds, Ballinger & Hutson, of Seattle, for appellant.

W. V. Tanner and S. H. Kelleran, of Olympia, for the State.


This is an action to recover damages for personal injuries sustained by the plaintiff through the giving way of the railing of a gallery in the Armory Building in the city of Seattle. A demurrer to the complaint was sustained. The plaintiff declined to plead further, and the action was dismissed. The plaintiff appeals.

The complaint alleges, in substance, that at the time of the accident the armory had been leased, for the sum of $50, for the night to the Seattle Athletic Club, which was holding therein an athletic entertainment; that during the entertainment, and at a time of excitement, numbers of spectators in the gallery leaned upon and over the rail, causing it to give way and fall, precipitating the rail and some of the persons in the gallery upon the plaintiff, who was standing upon the floor below, inflicting the injuries complained of.

It is charged as negligence that the railing was heavy, and not securely fastened nor properly braced in view of the purpose for which the building was leased; that another obvious and easy method of fastening and bracing the railing should have been employed; that the defective construction and bracing of the railing was not apparent to ordinary inspection, but the exercise of ordinary care on the part of the state would have led to a discovery of the defective condition, and that the defendant failed to exercise such care, and failed to make proper inspection; that no notice or warning was given to the plaintiff, or to any one, of the defective condition; that the defendant failed to prevent the admission of [68 Wash. 331] persons to the gallery, and failed to prevent them from leaning against and pushing upon the defective railing.

There can be no doubt but that, if the armory had been owned by a private individual, the negligence pleaded would have been sufficient to entail a liability for the injury. There is therefore presented, as the dominant question for solution, whether, under the facts pleaded, the state, as owner, is liable as a private owner would be. The first inquiry going to the solution of the question is, Whose was the negligence? It is manifest that it was that of some of the officers or agents of the state, since the state can only act through officers or agents. The act (Laws 1907, c. 55, p. 83), in pursuance of which the armory was constructed, made an appropriation therefor, created a commission, clothed it with the authority, and charged it with the duty to bring about the construction of the building. If the defect was one of original construction, whether in plan, work, or material, then plainly the negligence was that or this commission, or of its agents.

The Military Code (Laws 1909, c. 134, § 97, p. 494, Rem. & Bal. Code, § 7334), by implication, authorizes the leasing of armories for purposes other than military, but contains the proviso 'that no armory shall be used for any other than a strictly military purpose without the recommendation of the officer in charge thereof.' It is therefore a part of the official duty of the officer in charge to determine when and for what purpose, other than military, the armory may be used. It follows that if it was unfit for the purpose desired it was the duty of that officer to withhold his recommendation; and his failure to do so was negligence in his official capacity. If the state can be held liable for the negligence charged, it must be upon the ground that it can be held for the negligence, either of the commission, or of the officer in charge.

The state Constitution (section 26 of article 2) says: 'The Legislature shall direct by law in what manner and in what courts suits may be brought against the state.' [68 Wash. 332] This provision creates no cause of action, imposes no liability, as against the states, where none would exist independently of it. It merely directs the Legislature to provide a remedy for causes of action recognized at common law as against the sovereign, or created by statute.

Pursuant to this constitutional provision, the Legislature, by the law of 1895 (Rem. & Bal. Code, § 886), enacted that: 'Any person or corporation having any claim against the state of Washington shall have the right to begin an action against the state in the superior court of Thurston county.' The word 'claim,' as used in this section, is synonymous with 'cause of action.' The scope of the section is the same as that of the constitutional provision. Northwestern, etc., Bank v. State, 18 Wash. 73, 50 P. 586, 42 L. R. A. 33. It creates no cause of action. It provides a remedy for existing causes, but imposes no new liability. It does not waive [123 P. 452] any defense. Billings v. State, 27 Wash. 288, 67 P. 583.

The doctrine that a sovereign state is not liable for the misfeasance, malfeasance, nonfeasance, or negligence of its officers, agents, or servants, unless it has voluntarily assumed such liability, is established by authority so cogent and uniform that isolated expressions which might be construed as tending to the contrary are negligible. This court has clearly announced that doctrine in Billings v. State, supra, an action to recover damages resulting from delay of the commissioner of public lands in issuing a state land sale contract. The court thus stated the issue: 'The sole question to be determined is whether the complaint herein states a cause of action against the respondent; or, in other words, whether the state, under our statute, is liable for demages suffered by an individual by reason of the negligence or malfeasance of one of its officers, occurring while engaged in the discharge of his official duty.' [68 Wash. 333] Meeting this issue, the court said: 'It [the state] has not consented, either expressly or impliedly, to become responsible for the misconduct or negligence of its officers or agents; and, in the absence of a statute making it liable in damages therefor, no such action as the present one can be maintained against the state.'

This rule of nonliability for torts is tersely expressed by the United States Supreme Court, in Robertson v. Sichel, 127 U.S. 507, 515, 8 S.Ct. 1286, 1290 (32 L.Ed. 203), as follows: 'The government itself is not responsible for the misfeasances, or wrongs, or negligences, or omissions of duty, of the subordinate officers or agents employed in the public service; for it does not undertake to guarantee to any person the fidelity of any of the officers or agents whom it employs since that would involve it, in all its operations, in endless embarrassments and difficulties and losses, which would be subversive of the public interests. Story on Agency, § 319; Seymour v. Van Slyck, 8 Wend. [N. Y.] 403, 422; United States v. Kirkpatrick, 9 Wheat. 720, 735 [6 L.Ed. 199]; Gibbons v. United States, 8 Wall. 269 [19 L.Ed. 453]; Whiteside v. United States, 93 U.S. 247, 257 [23 L.Ed. 882]; Hart v. United States, 95 U.S. 316, 318 [24 L.Ed. 479]; Moffat v. United States, 112 U.S. 24, 31 [5 S.Ct. 10, 28 L.Ed. 623]; Schmalz's Case, 4 Ct. Cl. 142.'

The following authorities declare and exemplify the rule. Some of them expressly declare and through all of them runs the controlling principle that the exemption is based upon absence of obligation, and not upon mere absence of remedy. Belknap v. Schild, 161 U.S. 10-16, 16 S.Ct. 443, 40 L.Ed. 599; German Bank v. United States, 148 U.S. 573-579, 13 S.Ct. 702, 37 L.Ed. 564; State v. Mutual Life Ins. Co. (Ind.) 93 N.E. 213-218; Moody v. State Prison, 128 N.C. 12, 38 S.E. 131, 53 L. R. A. 855; Bourn v. Hart, 93 Cal. 321-327, 28 P. 951, 15 L. R. A. 431, 27 Am. St. Rep. 203; Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28, 24 N.E. 854, 8 L. R. A. 399, 402; Overholser v. National Home, 68 Ohio St. 236, 67 N.E. 487, 62 L. R. A. 936, 96 Am. St. Rep. 658; Lewis v. State, 96 N.Y. 71, 48 Am. Rep. 607; Clodfelter v. State, 86 N.C. 51, 41 Am. Rep. 440; Claussen v. City, 103 Minn. 491-495, 115 N.W. 643, 15 L. R. A. (N. S.) [68 Wash. 334] 698, 14 Ann. Cas. 673; State v. Hill, 54 Ala. 67; Elmore v. Fields, 153 Ala. 345, 45 So. 66, 127 Am. St. Rep. 31; Story on Agency (9th Ed.) § 319; 36 Cyc. 881.

The appellant seeks to confine this rule of nonliability for torts to cases where...

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