Sheridan v. City of Salem

• Decision Date: 21 December 1886
• Citation: 14 Or. 328,12 P. 925
• Parties: SHERIDAN v. CITY OF SALEM.
• Court: Oregon Supreme Court

12 P. 925

14 Or. 328

SHERIDAN v. CITY OF SALEM.

Supreme Court of Oregon

December 21, 1886

Appeal from circuit court, Marion county.

Geo. H. Burnett, for appellant.

N.B. Knight, for respondent.

THAYER, J.

This appeal is from a judgment in an action in favor of the respondent, against the appellant, for a personal injury alleged to have been sustained in consequence of a defective cross-walk across one of the appellant's streets. The respondent alleged in her complaint that the appellant was a municipal corporation, having exclusive power and authority to provide for the construction, cleaning, and repair of side and cross walks in said city; that it undertook to and did construct and maintain a cross-walk on the south side of Marion street and across Winter street, therein, which streets were at the time and still are thoroughfares, used by the citizens of the city and others; but that it neglected to keep and maintain said cross-walk in good repair, and suffered it to become rotten and dangerous to persons passing along it, by reason of which the respondent, while traveling over it, on the eighth day of May, 1885, received a fall, caused by the giving away of a portion of the cross-walk which occasioned the injury complained of. The appellant interposed a general demurrer to the complaint, which having been overruled by the court, answered over, denying the allegations of the complaint. The case was tried by jury, who returned a verdict against the appellant for $900, upon which the judgment appealed from was entered.

A number of grounds of error are assigned in the notice of appeal, the first of which is that the complaint is defective, in not alleging that the respondent's claim was presented to the common council of the city before the action was brought. This the appellant's counsel maintains should have been done, in compliance with the city charter of said city, and he refers us to two of its provisions. The first one provides that the common council has exclusive power to appropriate for any item of city expenditure, and to provide for the payment of the debts and expenses of the city; the second provides that no claim against the city shall be paid until it is audited and allowed by the common council, and then the treasurer shall pay it upon a warrant drawn upon him by the recorder. We do not think that these provisions were intended to apply to a claim of this character. They were intended as a restriction upon the treasurer in paying out the money of the city, and are doubtless within the rule laid down in Stackpole v School-district, 9 Or. 508. All claims arising out of the ordinary expenditures of the city are required to be presented to the common council for allowance before an action can be maintained thereon. But that arises out of a relation the claimant sustains to the city, created by an employment or contract of some character. Thus, a person who performs service, or does something for the city, at its request, for which compensation is to be made, tacitly agrees that he will present his claim to the common council for audit and allowance. That is the only mode by which the city can pay him. He so understands it when he engages to perform the service, and he could not claim that there had been a refusal to pay, or that there had been any breach of the contract or obligation, until the common council had refused to audit his demand. But in cases of tort the action is for damages, and the party injured is under no more obligation to present the claim to the corporation than he would be to a private person who had done him a wrong. The reason of the rule only applies to the former class of claims, and not to the latter,--has no application whatever to them.

Appellant's counsel lays great stress upon the comprehensiveness of the meaning of the word "claim," but that has nothing to do with the construction of the provisions of the charter referred to. It is not in consequence of that that the claim is required to be presented to be audited. It is the reason before indicated. The breach of payment in the action of assumpsit is a necessary allegation, but it does not figure at all in an action of trespass on the case. The city only agrees to pay a contracted indebtedness in case the claim is presented as mentioned, and the action is for a refusal to audit and allow it; but, if it commit a tort, the action matures at once. If the charter read that no claim should be sued upon until so presented, the rule might be different and the meaning of the term "claim" be important but, under the circumstances of the case, it is of no consequence whatever.

The next assignment of error is the question of the liability of a municipal corporation for damages occasioned to passengers along its streets and sidewalks in consequence of the neglect of its officers to keep them in repair. It is the same old ugly question that has wearied the patience of courts and attorneys for many years. A great many recoveries of damages have been upheld by the courts in that class of cases; but they have required the expenditure of an immense amount of brain labor to discover any principle upon which to sustain them. The appellant's counsel contends that the power delegated by the legislature contained in the city charter of the appellant, in reference to the care of streets, sidewalks, and cross-walks, is conferred exclusively upon the mayor and aldermen, comprising the common council and that they alone should be held liable for the consequence resulting from their own carelessness. That view seems reasonable, and, if it had been adopted in the outset, would have prevented the perplexity which the devious course pursued by the courts of many of the states has occasioned. I always thought it the correct one. I have never been able to discover any justice in allowing officials charged with a specific duty, relating to an affair in which the entire community is interested, to shirk the consequences of their own inattention, if not absolute heedlessness, upon the tax-payers of a...