Villalpando v. City of Cheyenne

• Decision Date: 09 March 1937
• Docket Number: 2002
• Citation: 65 P.2d 1109,51 Wyo. 300
• Parties: VILLALPANDO v. CITY OF CHEYENNE
• Court: Wyoming Supreme Court

65 P.2d 1109

51 Wyo. 300

VILLALPANDO v. CITY OF CHEYENNE

No. 2002

Supreme Court of Wyoming

March 9, 1937

APPEAL from the District Court of Laramie County; SAM M. THOMPSON Judge.

Action by Mary Villalpando against the City of Cheyenne. From an adverse judgment, plaintiff appeals.

Affirmed.

For the plaintiff and appellant, there was a brief by Richard J Jackson and Clyde Zachman of Cheyenne and oral argument by Mr. Jackson.

The trial court committed error in sustaining defendant's motion to strike the last clause of Paragraph 5 of the amended petition. Hanks v. Hanks, 27 Wyo. 65. The City of Cheyenne is not exempt from liability for plaintiff's injuries. Ramirez v. City of Cheyenne, 34 Wyo. 67; Opitz v. Town of Newcastle, 35 Wyo. 358; Cold Storage Co. v. City of Chicago, 211 U.S. 306; Griffith v. City of Butte (Mont.) 234 P. 829; 43 C. J. 183. The petition states a cause of action, 43 C. J. 1218; Article 16, Section 7, Wyoming Constitution. By filing a demurrer while a motion is undisposed of, defects which might have been raised by motion, were waived. The care of streets is not a governmental function. Ramirez v. City, supra. Municipal functions are those granted for the benefit of the community. Libby v. Portland, 74 A. 805. Under this class of functions are included the proper care of streets and alleys, parks and other public places. There is a distinction between governmental and municipal functions. 43 C. J. 183; Vilas v. Manila, 220 U.S. 345. It has been held that municipal liability is especially applicable in cities operating under the commission form of government. Kaufman v. Tallahassee, (Fla.) 94 So. 697. Plaintiff is required to allege facts essential to a cause of action, with reasonable certainty to inform defendant of the wrong complained of. 43 C. J. 1218. Unless the pleading fails to set out a cause of action, a demurrer should be denied. 43 C. J. 1220.

For the defendant and respondent, there was a brief and oral argument by H. B. Henderson, Jr. of Cheyenne.

Nobody moved to strike from the petition an allegation that defendant city was engaged in a private or municipal capacity and not in a governmental capacity. This motion was sustained and defendant thereafter demurred on the ground that the petition did not state facts sufficient to constitute a cause of action. The only authority cited by appellant is Hanks v. Hanks, 27 Wyo. 65. In that case a demurrer was filed and subsequently a motion to strike. The objection that a petition fails to state a cause of action may be urged at any stage of the proceeding, either by a general demurrer or by a motion. Bancroft Code Pleadings, Volume 1, p. 312. In the present case, the motion was filed out of time. The City of Cheyenne is exempt from liability for plaintiff's injuries. The Ramirez case, 34 Wyo. 67. North American Storage Company v. City of Chicago was a case entirely different from the one at bar. All of the cases cited by appellant are beside the point on the facts. Opitz v. Town of Newcastle, 35 Wyo. 358, established the responsibility of a municipality for injuries sustained in consequence of failure to perform its duty, in keeping streets in repair. The construction and maintenance of streets have been governmental functions. McQuillin on Municipal Corporations, 2d Edition, Vol. 1, p. 631; Bates v. Rutland, (Vt.) 22 A. S. R. 95; Hennesy v. New Bedford, (Mass.) 26 N.E. 999; Ross v. University, 30 Wyo. 433. The obligation of a city to keep its streets in a safe condition is clearly a governmental function. Ramirez case, 34 Wyo. 79, 80. The question is reviewed in an able manner in an article prepared in the Virginia Law Review, Vol. XXII, No. 8, June, 1936, where the authorities are reviewed. Harris v. District of Columbia, 256 U.S. 650. The city is not liable for injuries caused by the driver of a truck, who is an employee of the Street Cleaning Department, at a time when he is engaged in conveying ashes to a city dump. Akron v. Butler, (Ohio) 140 N.E. 734. The sprinkling of streets to keep down dust is a governmental act. Harris v. District, 256 U.S. 650; Scribilia v. City, (Pa.) 124 A. 273; Spaur v. Pawhuska, (Okla.) 43 P.2d 408; 14 A. L. R. 1473. The judgment of the lower court in sustaining the motion to strike and the demurrer to the amended petition, was correct and should not be disturbed.

RINER, Justice. BLUME, Ch. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

The appellant, Mary Villalpando, as plaintiff in the district court of Laramie County, brought this action against the respondent, City of Cheyenne, a municipal corporation, as defendant, to recover damages for injuries suffered by her and alleged to have been caused by the negligence of its employees in driving a motor vehicle owned by said City, used for sprinkling its streets and which collided with a truck in which she was then riding. The defendant filed both a motion to strike out a clause contained in one of the paragraphs of plaintiff's amended petition and also a general demurrer to that pleading, motion and demurrer being filed the same day. Thereafter, the district court heard arguments on said motion and ordered that it be sustained. Subsequently, but upon the same day, the court ruled upon the defendant's demurrer adversely to plaintiff's contentions thereon. Thereupon the plaintiff declined to plead further, and a judgment was entered against her, that she take nothing by her action and that her petition be dismissed. Saving her exceptions, she has brought the record here for review by direct appeal.

The accident which caused the alleged injuries to the plaintiff occurred on November 16, 1934, and Paragraph "5" of her amended petition sets forth the averments upon which arise the questions argued upon this appeal thus:

"That said motor vehicle of defendant was owned and operated by defendant and that on the 16th day of November, 1934, defendant, its agents, servants and employees were driving and operating said motor vehicle at the times and places hereinafter set out in sprinkling certain streets in Cheyenne, Wyoming, after which operation blading of said streets was carried on by the defendant, its agents, servants and employees; that defendant was thereupon engaged in a private or municipal capacity and not in a governmental capacity."

The motion aforesaid filed by the defendant, among other grounds, attacked the last sentence of the quoted paragraph as a conclusion. It is urged that the court erred in sustaining the motion because any defect in the pleading which could be reached by that method was waived through the defendant filing its general demurrer thereto. We think that the averment in question is a conclusion of law, but we also think that by filing the demurrer, the defendant waived its motion, and consequently the district court committed a technical error in sustaining it. See Hanks v. Hanks, 27 Wyo. 65, 71, 191 P. 1077; 49 C. J. 754, Sec. 1065, and cases cited in Note 23; 49 C. J. 832, Sec. 1230, and cases cited in Note 84; Paramount Publix Corporation v. Boucher, 93 Mont. 340, 19 P.2d 223. Nevertheless, considering the views we hold relative to the court's action in sustaining the demurrer aforesaid and presently to be indicated, we cannot regard the fact that the motion was ruled upon adversely to the plaintiff to be prejudicial error.

This court in State v. Irvine, 14 Wyo. 318, 84 P. 90, in describing the averments to be regarded as admitted upon disposition of a demurrer to a pleading, has said that, "While a demurrer admits the truth of the material allegations of fact in the pleading demurred to, it does not admit arguments, legal conclusions or inferences not supported by the facts and circumstances therein set forth, nor the construction of statutes, nor facts that are immaterial or against common knowledge." See also 49 C. J. 438-440, Sec. 545, and cases cited in Notes 15 and 17. It follows, therefore, that although the pleader inserted in plaintiff's amended petition the conclusion that because the defendant's employees were operating the motor vehicle aforesaid in sprinkling certain streets of the defendant, the latter was "engaged in a private or municipal capacity and not in a governmental capacity," such allegation was not admitted when the City interposed its demurrer to the pleading. It will be noted, also, from the quoted paragraph above, that it is alleged that after the sprinkling operation was performed upon the streets they were "bladed," i. e., scraped by defendant's employees. It does not appear from the pleading just when after the sprinkling was accomplished the blading was done, whether the same truck and employees were engaged in the blading work or whether there was any related connection between the operations of sprinkling the streets and blading them. It is, however, perfectly clear from the allegations of plaintiff's amended petition that on the date specified the defendant's employees were operating the motor vehicle aforesaid in sprinkling the city streets and that the accident happened while they were so doing.

The question is presented then, and this is the point particularly discussed by the parties on the hearing and in their briefs, whether a municipality is liable in damages when its employees are engaged in sprinkling its streets and they operate the vehicle used in performing that work so that by their negligence some one is injured. The plaintiff maintains that this operation was in the exercise by the City of a corporate or private function, with a consequent liability on the part of the City, while the defendant insists that it was governmental in character and hence not actionable.

Our attention is directed by the briefs and arguments herein to three of the previous ...