Savage v. Town of Lander

• Decision Date: 02 April 1957
• Docket Number: No. 2759,2759
• Citation: 77 Wyo. 157,309 P.2d 152
• Parties: Myrtle Bell SAVAGE, Plaintiff and Appellant, v. TOWN OF LANDER, Wyoming, Defendant and Respondent.
• Court: Wyoming Supreme Court

Page 152

309 P.2d 152

77 Wyo. 157

Myrtle Bell SAVAGE, Plaintiff and Appellant, v. TOWN OF LANDER, Wyoming, Defendant and Respondent.

No. 2759.

Supreme Court of Wyoming.

April 2, 1957.

John J. Spriggs, Jr. and John J. Spriggs, Sr., Lander, for appellant.

Arthur E. Oeland, Lander, for respondent.

Before BLUME, C. J., and HARNSBERGER and PARKER, JJ.

Justice PARKER delivered the opinion of the court.

On October 31, 1953, plaintiff parked her car diagonally on the south side of Main Street in the town of Lander with the right front wheel immediately to the left of a gutter drain inlet. She stepped out of the car on the driver's side, entered a nearby store, and when she returned, went to the opposite (right hand) side of the car because her husband had shifted to the driver's seat. As she stepped off the curb into the street adjacent to the inlet, she slipped 'off of something' and fell, with her leg extended into the inlet. Her leg was broken, and she suffered other injuries, for which she brought an action against the town in the sum of $10,614.

The case was tried before a jury; and at the conclusion of the testimony, the defendant town of Lander moved for a directed verdict on the grounds that plaintiff had failed to prove either the allegations of her petition or any actionable negligence. After hearing argument, the trial court orally discussed the problem, granted the motion for the directed verdict as requested, and entered judgment for defendant.

Plaintiff's present appeal urges several errors centering upon the trial court's alleged misapprehension of the law and misinterpretation of the evidence in directing a verdict in favor of the defendant. These contentions of plaintiff are based upon several propositions set forth in the brief: That the city had complete control of its streets; owed plaintiff the duty of keeping them in a reasonably safe condition; and that defendant breached this duty by maintaining a dangerous, unguarded, and unprotected gutter drain into which plaintiff stepped or fell causing the injury in question.

Any analysis of an action for personal injury against a town must be considered in the true legal perspective governing the tort liability of a municipality--as distinguished from a private corporation or an individual. The law on this subject is too well settled to admit of serious controversy. A municipal corporation has a dual nature or capacity, one public, and the other private, and exercises twofold functions and duties. The rule is generally recognized that in the absence of statutory provision there can be no recovery against a municipal corporation for injuries occasioned by its negligence or nonfeasance in the exercise of a function which is essentially governmental in character. On the other hand, a city's actions in its private or proprietary capacity are governed by the same rules of liability for wrongful acts as apply to private corporations or individuals. See 38 Am.Jur., Municipal Corporations, § 572; 63 C.J.S., Municipal Corporations, § 746; 18 McQuillin, Municipal Corporations, 3d ed., p. 132 ff.; 2 Shearman and Redfield, Negligence, rev. ed., p. 694 ff.

With this in mind, we next consider the requirements of pleadings in tort actions against municipalities. This, too, is well settled and needs no extended discussion. In a tort action against a municipal corporation because of a defect or obstruction in a public street, gutter, drain, or sewer, the petitioner should set out with reasonable certainty the acts on which the liability is based and all facts essential to constitute a legal cause of action for negligence. This includes, among other things, the duty of the defendant, the negligence or breach of that duty, proximate cause of the injury, the existence and nature of the defect or obstruction, and whether or not the alleged negligence was committed in the performance of a governmental or a proprietary function. 63 C.J.S., Municipal Corporations, § 934. In that source at p. 400 it is stated:

'* * * as a rule, plaintiff should specifically allege facts showing that the negligence was not committed in the governmental capacity of defendant but that it was committed in the performance of a proprietary, ministerial, or corporate function. * * *'

A correlative to the last named rule of law is found in the same authority in § 938 which states at p. 419, 'An activity of a municipality is presumed to be governmental rather than proprietary.'

Briefly stated, plaintiff's petition alleges that defendant was a 'municipal corporation' in 'complete control' of Main Street on which it had 'installed * * * a certain parking meter'; that on the date of the accident defendant 'did neglect and fail in its said duty * * * to keep Main Street * * * in a safe and reasonable condition * * * and did negligently, willfully, and knowingly construct and maintain * * * on said Main Street a dangerous, unguarded * * * unprotected and unmarked gutter drain'; that the accident occurred; that plaintiff was damaged in the amount claimed; and that she had theretofore presented to defendant a verified claim for the damage.

In urging that the directed verdict was improper, plaintiff states, 'The rule of law applicable to this case is that on motion for a directed verdict no evidence for defendant is considered. The evidence of defendant is disregarded.' This statement is too broad and is not substantiated by previous holdings in this State. See In re Lane's Estate, 50 Wyo. 119, 58 P.2d 415, 60 P.2d 360, wherein at page 363 the court states:

'Appellant maintains that the opinion of the court in this case was erroneous in considering testimony given by respondents, and that, in reviewing the action of the trial court in granting the motion for a directed verdict, only the evidence introduced in behalf of the contestant could be considered, with all reasonable inferences to be drawn from it. This proposition is inaccurate, and the contention cannot be upheld. 64 Corpus Juris, 443, states the rule as to what evidence should be considered on a motion to direct a verdict in this language: 'The testimony to which the court is to look for circumstances making out the case of the adverse party includes the whole testimony in the case and is not limited to that offered by such party but extends as well to that produced by the movant.'' (Emphasis supplied.)

In the instant case, we find no substantial conflict of the evidence except on the point of whether or not the plan was inherently dangerous, which, as will be discussed later, is a question within the province of the court, not the jury.

As previously indicated the rules of pleading in tort actions against municipalities required plaintiff to plead not only the alleged wrong causing the injury but also the capacity in which the town of Lander was said to have acted. As we have seen, plaintiff in her petition made no reference to the capacity in which the town of Lander was said to have acted. On the contrary her allegation failed to indicate any recognition of a distinction between the tort liability of private corporations and public corporations. (Additionally, her allegations of neglience were most general--to the effect that defendant did 'construct and maintain' the dangerous drain--and her statement of causation was peripheral rather than direct.) It is true that the trial court overruled defendant's demurrer, allowing the allegations of plaintiff's petition to stand; and defendant thereafter entered a general denial. Nevertheless, defendant was not thereby deprived of introducing evidence concerning the approval or nonapproval of the plan of construction and of the capacity in which the town was acting--facts which plaintiff of right should have pleaded. The burden of proof as to the adoption of an approved plan was discussed in Quest v. Town of Upton, 36 Wyo. 1, 252 P. 506; but that point was found nonessential to the disposition of the case. Nevertheless, the court's statement on this subject, 252 P. at pages 508, 509, is significant to us in the consideration of the instant matter:

'* * * We are not certain * * * upon whom should rest the burden of proof thereof. It was said in the case of Lennon v. City of Seattle, 69 Wash. 447, 125 P. 770, that it would ordinarily be presumed, in the absence of any showing of actual negligence, that reasonable care was used in adopting plans for municipal improvements. So in Treadwell v. City of Yonkers, 192 App.Div. 421, 182 N.Y.S. 675, the court seems to proceed upon the theory that the burden to prove negligence, in the adoption of a plan, is upon the plaintiff. See, also, Hays v. [City of] Columbia, supra [159 Mo.App. 431, 141 S.W. 3]; Owen v. [City of] New York, 141 App.Div. 217, 126 N.Y.S. 38. We need not, however, decide the question. * * *'

To a similar effect is the holding in Martin v. City of Greensboro, 193 N.C. 573, 137 S.E. 666, 667, 'we must * * * assume that the sidewalks were built * * * in pursuance of a plan approved and adopted by the authorities of the city.' See also Lemieux v. City of St. Albans, 112 Vt. 512, 28 A.2d 373, 375. In that case plaintiff sued the city for an injury caused by defendant's truck. The city moved for a directed verdict, urging as one ground that the driver of the truck was in the performance of a governmental function. The motion for a directed verdict was denied. On appeal, the supreme court reversed the case with the following statement:

'The plaintiff claims that the defendant is estopped from raising this question because he says that the defense of governmental function is an affirmative one so that it must be specially pleaded to be available and that the case was tried below on this theory. An examination of the transcript discloses that the plaintiff did make the claim of affirmative defense during the trial and that the Court was 'rather inclined' to agree with him. It also appears that the defendant insisted that it was...