O'Rourke v. City of Sioux Falls
| Decision Date | 19 April 1893 |
| Citation | 54 N.W. 1044,4 S.D. 47 |
| Parties | O'ROURKE v. CITY OF SIOUX FALLS. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. A demurrer to a complaint, on the ground that it does not state facts sufficient to constitute a cause of action, is sufficient in form if it state the ground in the language of the statute, without further specification of particular defects.
2. There are generally two kinds of duties imposed upon a municipal corporation,--one for govermental purposes, to be discharged by the corporation as one of the political divisions of the state; the other arising from the grant of some special power, in the exercise of which the corporation acts as a legal individual.
3. In the enactment of ordinances, and in the appointment of officers and agents for their enforcement, the municipality is exercising a governmental authority, and within its limits acts as the representative of the state.
4. In such case municipal officers are regarded as agents, not of the municipal corporation, but of the state, and the municipality is not answerable for the nonfeasance or misfeasance of such officers.
5. The fact that a cannon is placed in one of the public streets of a city and there fired, in violation of an ordinance, whereby one is injured, does not make the city liable for such injury, although it was known to the officers of such city that the cannon was to be fired, and they took no steps to prevent it.
6. Under such circumstances, the firing having occurred in the evening, an allegation in the complaint that the city had the power, and had undertaken to exercise it, to light the streets of the city, and that the accident occurred "by reason of the failure of the city to have a light at or near the place of the accident," does not sufficiently charge negligence on the part of the city, since the absence of a light at that particular time and place might be accounted for in many ways consistent with freedom from legal negligence.
Appeal from circuit court, Minnehaha county; F. R. Aikens, Judge.
Action by Maggie O'Rourke against the city of Sioux Falls to recover for personal injuries sustained by the firing of a cannon, negligently permitted by the officers of the city. A demurrer to the complaint was sustained, and plaintiff appeals. Order affirmed.
Joe Kirby, for appellant. C. L. Brockway and D. E. Powers, for respondent.
This is an appeal from an order sustaining a demurrer to appellant's complaint, on the ground that it "does not state facts sufficient to constitute a cause of action against the defendant." A preliminary question is presented by the contention of appellant that under section 4910, Comp. Laws, providing that the demurrer shall be disregarded unless it distinctly specify the grounds of objection, the court should have refused to entertain the demurrer, and, in the language of the statute, should have disregarded it. Appellant contends that even if, generally that form of demurrer is allowable, as "where the question is a lack of sufficient allegations in the complaint, yet it is not sufficient where it is attempted to take advantage of affirmative facts alleged in the complaint." While we recognize some force and reason in the suggestion, we think the distinction has not generally been observed, and that the contrary rule prevails. Maxw. Code Pl. 381; Bayliss, Code Pl. 216, 217; Bliss, Code Pl. § 416; Getty v. Railroad Co., 8 How. Pr. 177; Henderson v. Johns, 13 Colo. 280, 22 P. 461; Turnpike Co. v. Sidener, 40 Ind. 424. The facts alleged in the complaint as constituting the plaintiff's cause of action are that the defendant city, through its common council, appointed and continued in office a careless inefficient, and negligent police force; that at the time of the accident referred to there was in force in said city an ordinance prohibiting the firing of guns and cannon within the limits of said city, but that, with full knowledge on the part of the members of the common council of said city that it was to be done, the said police officers of said city permitted a cannon to be placed in one of the public streets of said city, and there carelessly fired after dark, and at a time when it could not be discovered by travelers on said street, and that plaintiff, while passing along said street was, without any fault or negligence upon her part, struck by the wadding so fired from said cannon, and greatly injured. In a second count of the complaint it is alleged that the said defendant city, through its officers and employes negligently and carelessly allowed the said street to be obstructed by a nuisance, to wit, a large cannon, which it negligently and carelessly permitted to be exploded upon said public street under the circumstances, and in the manner, described in the first count, well knowing the dangerous character of said cannon, and of such explosion, resulting in the injury to the plaintiff already noticed. And in a third count it is alleged that at the time of said accident the common council of said city had and exercised the power of causing the public streets of said city to be lighted for the purpose of preventing accidents and injury to travelers thereon after dark, but that, by reason of the failure of said defendant city to have a light in the street in the vicinity of this cannon, the accident and injury occurred, as already described.
It will be observed that the theory of the first count or alleged cause of action is that of actionable negligence in appointing and maintaining in office negligent and inefficient officers, and knowingly permitting the violation of a city ordinance; the theory of the second count is in knowingly allowing the public street to be obstructed by a nuisance; and that of the third, failure of the city to light the street in the vicinity of the accident, it possessing the power to light the...
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