Shimada v. Diking Dist. No. 12 of Skagit County

• Decision Date: 12 May 1926
• Docket Number: 19742.
• Citation: 139 Wash. 168,245 P. 916
• Parties: SHIMADA v. DIKING DIST. NO. 12 OF SKAGIT COUNTY et al.
• Court: Washington Supreme Court

245 P. 916

139 Wash. 168

SHIMADA v. DIKING DIST. NO. 12 OF SKAGIT COUNTY et al.

No. 19742.

Supreme Court of Washington

May 12, 1926

Department 1.

Appeal from Superior Court, Skagit County; Joiner, Judge.

Action by Frank Shimada, a minor, by his nex friend and natural guardian, S. Shimada, against Diking District No. 12 of Skagit County, a quasi municipal corporation, W. E. Jennings and others, Commissioners of said Diking District, and Lewis Ekman and his wife. From a judgment of dismissal as to the Diking District and its Commissioners, plaintiff appeals. Affirmed.

H. C Thompson, of Bellingham, and Wilbra Coleman, of Mt. Vernon for appellant.

R. V Wetts, Thomas Smith, and J. G. Smith, all of Mt. Vernon, for respondents.

FULLERTON J.

The appellant, Frank Shimada, is a minor, 9 years of age, and sues herein by his guardian. The respondent diking district No. 12, of the county of Skagit of the state of Washington is a diking district organized under the Act of the Legislature of March 20, 1895 (Laws 1895, p. 304). The respondents W. E. Jennings, P. Samuelson, and Ben Otterstedt are the duly elected and acting commissioners of the diking district named. The defendant Lewis Ekman is the general superintendent and foreman of the diking district, and has charge of all work performed on behalf of the district in the construction and repair of its dikes, ditches, and other structures. The defendant _____ Ekman is the wife of Lewis Ekman.

On September 28, 1924, the diking district was engaged in the repair of one of its dikes, on the top of which dike a wagon road extended. The work required blasting, and a box containing dynamite and dynamite caps was brought to the place of work for that purpose. During a temporary absence of the workmen engaged in the work, the box and its contents were left in a conspicuous and exposed position near the place of work. The minor appellant, while passing over the road mentioned, espied the box, and, going to it, took therefrom and carried away certain of the dynamite caps. Some two days later, while he was playing with the caps, one of them exploded, blinding and otherwise permanently injuring him. The work in which the district was engaged was being performed under the direct and immediate supervision of the defendant Lewis Ekman.

In this action, the minor appellant sought to recover for the injuries suffered. To his complaint, which embodied the facts above outlined, the respondents and the defendants interposed a general demurrer. The trial court sustained the demurrer as to the respondents, and overruled it as to the defendants. The appellant elected to stand on his complaint, whereupon the court entered a judgment of dismissal with prejudice as to the respondents. The appeal is from the judgment so entered.

As to the commissioners of the district, there would seem to be but little question that the demurrer was rightly sustained in so far as the action is against them personally. The district is a corporation, and these persons but compose the body whom the statute empowers to direct and carry out its corporate functions. Their authority is to 'manage and conduct the business affairs of the district,' and their acts in that behalf, when within the scope of their authority, are the acts of the corporation, not their individual acts, and they are not bound to answer personally, merely because of their official relation to the corporation, either for its contracts or for torts committed by its subordinate agents or employees. If the rule were otherwise, the corporation could hardly function. No person of character or responsibility could afford to accept such a position if he is to be held personally liable for the contracts he incurs on behalf of the corporation, or personally liable for torts committed by the persons he employs on its behalf. This is not to say that he can in no case be so personally liable. In the case of a contract he is liable if he binds himself upon it, and in the case of a tort he is liable if he personally directs its commission, or participates therein, or remains inactive when he knows, or should know, in the exercise of reasonable care, that it is about to be committed and takes no steps to prevent it. But he is liable in these instances because of his personal action or inaction, not merely because of his official position. In this instance there is no charge that the commissioners participated in the wrong giving rise to the appellant's injury. There is no charge even that they were guilty of employing an incompetent servant. They can be held therefor, if held at all, only under the doctrine of respondeat superior. But this doctrine is applicable only in instances where the subordinate is the servant or agent of the superior, and here the diking district is the superior, not the commissioners who are merely its directing head.

The question whether the district is liable involves different principles and is of more difficulty. The first question in dispute between the parties is whether a diking district organized under the statute cited partakes of the nature of a public or of a private corporation. It is our opinion that it partakes of the nature of the former. Indeed, it would seem that the statute itself permits of no other interpretation. The organization of such a district is initiated by petition. The petition must set forth the boundaries of the proposed district, the nature of the proposed system of diking it is contemplated to construct, must contain the averment that the proposed system 'will be conducive to the public health convenience, and welfare, and increase the public revenue, and that the establishment of said district and system of diking will be of special benefit to the property included therein,' and the board empowered to hear and determine the truth of the allegations of the petition must find as fact, before the final steps necessary to complete the organization are taken, that the quoted averments of the petition are true. Again, the proceedings had for the organization of the district are not wholly voluntary. The initial petition needs be signed only by such number of persons as own a majority of the acreage within the boundaries of the proposed district, and, in the final vote necessary to complete the organization, a majority vote of the legally qualified electors within the district alone is required. True, any one affected by the organization of the district is given an opportunity to make objections against the establishment of the district, but he must show some reason in law or some reason in fact, fatal to the establishment, before his objections will avail him anything. His mere disagreement with the policy or objects of the majority is of no concern. However much he may be unwilling to have his land subjected to the burden imposed upon it by the establishment of the district, he must submit if the majority rule otherwise. It may be that the organization is voluntary in so far as the persons holding a majority in acreage of the land within the district are concerned, but, manifestly, it is...