Storti v. Town of Fayal

• Decision Date: 14 June 1935
• Docket Number: No. 30391.,30391.
• Citation: 261 N.W. 463,194 Minn. 628
• Parties: STORTI v. TOWN OF FAYAL
• Court: Minnesota Supreme Court

261 N.W. 463

194 Minn. 628

STORTI v. TOWN OF FAYAL

No. 30391.

Supreme Court of Minnesota.

June 14, 1935.

Appeal from District Court, St. Louis County; Edward Freeman, Judge.

Action by Dewey Storti, by Fred Storti, his father and natural guardian, against the Town of Fayal. From an order overruling a demurrer to the complaint on the ground that it failed to state sufficient facts to constitute a cause of action, defendant appeals.

Affirmed.

John E. Manthey, of Eveleth, for appellant.

Hougen & Holten, of Minneapolis, for respondent.

I. M. OLSEN, Justice.

The defendant appeals from an order overruling a demurrer to the complaint on the ground that it fails to state facts sufficient to constitute a cause of action. The court certified that the questions presented by the demurrer are important and doubtful, so as to allow an appeal from the order.

Plaintiff brought the action to recover damages for personal injuries claimed to have been caused by the negligence of the defendant town, through its officers and servants, in stringing and maintaining a telephone wire over a state highway in such a manner as to render the road unsafe and dangerous for traffic on the highway, whereby plaintiff, traveling on the highway, was caught by said telephone wire and thrown to the pavement and injured.

The court, in its memorandum attached to the order overruling the demurrer, states the questions presented by the demurrer as follows: First, whether by operating a telephone system the township is acting in a governmental or a proprietary capacity; second, if operating a telephone system in a proprietary capacity, can the township be held liable for negligence of its officers or servants in operating such telephone system? The State Constitution, section 3, art. 11, providing for the organization of townships, reads as follows: "Laws may be passed providing for the organization, for municipal and other town purposes, of any congressional or fractional townships in the several counties in the state."

The defendant town of Fayal is a township organized under the laws of this state passed pursuant to the constitutional provisions above quoted. Mason's Minn. Statutes, 1927, § 999, recites the general powers of organized townships. Section 1000 of the statute provides that no towns shall possess or exercise any corporate powers except such as are expressly given by law or are necessary to the exercise of the powers so given.

By Laws 1921, c. 439, as amended, Mason's Minn. Statutes 1927, §§ 5312-5316, towns were authorized to construct and maintain telephone lines and local exchanges for the purpose of preventing forest or prairie fires and extinguishing the same, promoting public welfare, public health and public safety, and facilitating the work of public improvements, but the act further goes on to authorize towns to charge and collect rentals for the use of such telephone system by the inhabitants of the town; in other words, to operate the system in the same manner as telephone systems and lines are constructed and operated by private persons or corporations. Towns were further authorized to issue bonds for the purpose of constructing and operating such telephone systems. We have then in this case a township which, under authority of law, has constructed, operates, and maintains a telephone system both for governmental or municipal purposes and for the use and benefit of inhabitants of the town for the same purposes as telephone lines and systems are commonly constructed and operated by private corporations or individuals, and for which rentals or tolls are charged and collected from private individuals.

It is apparent that the law authorizes the town, in addition to constructing and maintaining a telephone system for governmental purposes, to also construct and operate the system as a public utility for compensation and profit in the same way as other public utilities are operated. The complaint in the case charges that the defendant did own and operate this telephone system and furnished private telephone service to residents of the town, charging regular rates from all subscribers for such service. The complaint sufficiently alleges that the defendant was operating a public utility.

The decisive question for review is whether an organized town such as defendant is liable for the negligence of its officers and servants in constructing and operating such a public utility. We have a line of cases, beginning with Altnow v. Town of Sibley, 30 Minn. 186, 14 N. W. 877, 44 Am. Rep. 191, holding that a town is not liable for the negligence of its officers and servants in the matter of constructing, maintaining, and repairing public highways. The reason for this rule is stated in that case as follows: "A town is a quasi and public corporation only, and as such a part of the government of the state. The duties enjoined upon it by law are enjoined upon it as a part of government, and not otherwise." Other cases stating this general rule are Dosdall v. County of Olmsted, 30 Minn. 96, 14 N. W. 458, 44 Am. Rep. 185; Weltsch v. Town of Stark, 65 Minn. 5, 67 N. W. 648; Tholkes v. Decock, 125 Minn. 507, 147 N. W. 648, 52 L. R. A. (N. S.) 142; Bolland v. Gihlstorf, 134 Minn. 41, 158 N. W. 725; Zacharias v. Nesbitt, 150 Minn. 369, 185 N. W. 295, 19 A. L. R. 1016. The same rule is applied to counties and school districts. Bank v. Brainerd School District, 49 Minn. 106, 51 N. W. 814; Kramer v. County of Renville, 144 Minn. 195, 175 N. W. 101. These cases involve the governmental functions of towns, counties, and school districts only. There is an exception to the rule...