Tholkes v. Decock
| Decision Date | 29 May 1914 |
| Docket Number | Nos. 18,692-(133).,s. 18,692-(133). |
| Parties | JOHN THOLKES v. EVO DECOCK and Another.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
Action in the district court for Lyon county to recover $1,000 from defendant DeCock, road overseer, and defendant DeLanghe. The case was tried before Olsen, J., who granted defendants' motion to dismiss the action. From an order denying his motion for a new trial, plaintiff appealed. Reversed.
Gislason & Gislason, for appellant.
Virgil B. Seward and Davis & Michel, for respondent.
Defendant DeCock is the road overseer of the highway district in which he resides, charged with the statutory duties pertaining to that
Note. — Upon the personal liability of highway officers for negligence, see note in 22 L.R.A. 824.
As to the personal liability of highway officers for acts in excess of their authority, see note in 13 L.R.A.(N.S.) 233 office. On September 23, 1912, one of the roads within his district became out of repair and, acting within his authority, he employed defendant DeLanghe to make the necessary repairs. The repairs required and undertaken consisted in the removal of an old bridge or culvert, replacing the same with a new one. Defendant DeLanghe entered upon the performance of this work; he removed the old culvert, and left the excavation created by such removal open and exposed during the night without guards, lights or other warnings to the traveling public, and plaintiff, traveling along the road with his automobile at some hour after dark, ran into the ditch or excavation so created and received the injuries of which he here complains. The complaint sufficiently charges negligence upon the part of both defendants, in the failure to erect guards or place lights at the excavation, as a warning to those traveling upon the road, and we assume, in disposing of the case, that both were equally under legal obligations to guard the excavation, extending across the traveled part of the road, and to protect travelers thereon from harm. In other words we give no consideration to the fact that one of the defendants was an officer and the other an employee. They are both charged with negligence in the respect stated, and are treated for present purposes as jointly liable. The evidence when the case is tried may change the situation entirely. On the trial below the court, on the joint motion of defendants, dismissed the action, on the ground that the complaint failed to state a cause of action against either defendant. Plaintiff appealed from an order denying a new trial.
It is thoroughly settled law in this state that towns are not liable for injuries resulting from defects in the public highways, whether such defects arise from the nonfeasance or misfeasance of the township officers, except perhaps in the instances involved in Peters v. Town of Fergus Falls, 35 Minn. 549, 29 N. W. 586, as the rule of that case was explained and limited in Weltsch v. Town of Stark, 65 Minn. 5, 67 N. W. 648. The original case holding to the rule of nonliability, and distinguishing between town and other municipal corporations (Altnow v. Town of Sibley, 30 Minn. 186, 14 N. W. 877, 14 Am. Rep. 191) has been uniformly adhered to in subsequent cases. 2 Notes on Minn. Reports, 375. But the further question, the one on which this case turned in the court below, namely, whether the highway officers are liable for the negligent performance of their duties in respect to the care of public highways, where the town is not liable, has not heretofore come before us for decision, and is now presented for the first time. The question has been presented to the courts of other states with different results.
The liability of public officers for the negligent failure to discharge ministerial duties expressly imposed upon them by law, in consequence of which injury is suffered by an individual member of the community, is well settled. The general rule is tersely stated by Mr. Justice Bunn in Howley v. Scott, 123 Minn. 159, 143 N. W. 257, and as there laid down is followed and applied by practically all the courts. 23 Am. & Eng. Enc. (2d ed.) 377; 2 Sherman & R. Neg. 303, et seq.; County Comm. v. Duckett, 83 Am. Dec. 557, and note. 1 Dillon, Mun. Corp. (5th ed.) § 438. This is true notwithstanding the fact that the county, town, or other municipality which they may represent is not responsible at the suit of a private person either for their nonfeasance or misfeasance. The wrong of the officer is not the wrong of the municipal subdivision he may represent, but that of the officer, and he alone is responsible therefor, except perhaps where by law the municipality is equally liable. The county is not responsible to private persons for the torts of its sheriff, county auditor or other officer, yet the officer himself, for his negligence in respect to the performance of his ministerial duties, is liable to any person who may suffer in consequence of such neglect. Rosenthal v. Davenport, 38 Minn. 543, 38 N. W. 618; Selover v. Sheardown, 73 Minn. 393, 76 N. W. 50, 72 Am. St. 627. And, with this general rule of liability in mind, it is a little difficult to conceive of a logical or consistent theory on which town road officers may be exempted therefrom. Their situation is precisely like that of other public officers who are liable though the municipality they represent is not, and can be relieved only by declaring in their favor an exception to the rule for which we find no sufficient reason. It is the wrongful conduct of the officer of which complaint is made, and to hold him answerable therefor, accords to the injured party the remedy guaranteed by the law of the land, whereas, to relieve him of such wrong would result in leaving the injured party wholly without a remedy. It is no doubt competent for the legislature to relieve municipal corporations from liability for defects in their streets and public places. Batdorf v. Oregon City, 53 Ore. 402, 100...
To continue reading
Request your trial