Wagner v. City of Portland

• Decision Date: 20 January 1902
• Citation: 40 Or. 389,67 P. 300
• Parties: WAGNER v. CITY OF PORTLAND. [1]
• Court: Oregon Supreme Court

67 P. 300

40 Or. 389

WAGNER v. CITY OF PORTLAND. ^[1]

Supreme Court of Oregon

January 20, 1902

Appeal from circuit court, Multnomah county; Alfred F. Sears, Jr. Judge.

Action by Henry M. Wagner against the city of Portland. From a judgment in favor of the plaintiff, the defendant appeals. Reversed.

A board consisting of three commissioners appointed by the mayor is given by the charter of the city of Portland full, complete and exclusive power and authority on behalf of the city to perform all executive functions thereof in the organization management, and control of its fire department, and all powers and duties incident thereto. Sess.Laws 1898, p. 132,§ 87. In pursuance of this authority, such board had under its control and management a system of fire alarm wires; being the property of the city, and used for communicating alarms of fire occurring therein. R.G. Paddock, who was the city electrician, and superintendent of the system, deriving his authority from the board, employed the plaintiff as groundman. While engaged in that capacity, keeping the system in repair, he was injured by receiving a shock from an electrical current, for which injury he brings this action for damages, alleging that it was caused by the negligence of the municipality; and, having obtained a judgment in the trial court, the defendant appeals.

J.M. Long, for appellant.

Thos O'Day, for respondent.

WOLVERTON J. (after stating the facts).

By defendant's separate defense, which was stricken out on motion, two questions are presented, which lie at the threshold of the controversy. It is maintained with much emphasis (1) that the board of fire commissioners is an independent body, so constituted by the charter, with full and exclusive power and control over the fire department, and the city is in no sense responsible for its acts; and (2) that the board, in prosecuting such improvement, acted in a political and governmental, rather than in a private or corporate, capacity, and therefore it cannot be held amenable for the negligence of its officers and agents. The two positions are not altogether consistent, as the latter seems to assume that the fire department is not an independent body, such as to shift liability from the city. But the purpose is manifest to save both questions, and, if the former is decided adversely to the contention, then the latter becomes a live issue. We think that the charter settles the former. It vests in the board the executive functions of the city pertaining to the organization, management, and control of the fire department, and all powers and duties incident thereto. As to this particular department, therefore, the board stands in the place and stead of the common council, exercising the authority of that body; and its acts become as much the acts of the city as if the common council had performed them, had not the authority in the premises been transferred to the board.

As to the latter question, it is one of more difficulty,--not so much in the finding of general rules governing the liability of municipal corporations for torts committed through their officers and agents, but in determining where the case falls and by what rules it is governed. Municipal corporations exist in a dual capacity, and their functions are twofold. In one, they exercise the right springing from sovereignty, and while in the performance of the duties pertaining thereto their acts are political and governmental. Their officers and agents, though elected or appointed and paid by them, are nevertheless public functionaries, performing a public service, in which the corporations, as such, have no particular interest, and from which they derive no special benefit or advantage in their private or corporate capacity. Such officials are not, strictly speaking, the servants and agents of the municipalities through which they derive their authority, but are officers, agents, and servants of the state (that is, the political divisions thereof, or the public at large), and for their acts of omission and commission the municipalities themselves are not liable. In the other, they exercise a private, proprietary, or corporate right, arising from their existence as legal persons; and where the duty is one that rests upon the municipalities in respect of their special or local interests, and not as public agencies, and is absolute and perfect, not discretionary or judicial in its nature, their officers and agents in the performance of the function or duty act in behalf of, or as the alter ego of, the municipalities in their corporate capacity, and not for the state or public at large, and for their acts the municipalities are held to accountability. This has become the settled doctrine in the jurisprudence of this country, about which there is no dissent. Caspary v. City of Portland, 19 Or. 496, 24 P. 1036. 20 Am.St.Rep. 842; Esberg Cigar Co. v. City of Portland, 34 Or. 282, 55 P. 961, 43 L.R.A. 435, 75 Am.St.Rep. 651, and cases there cited; 1 Jag. Torts, 173, 179; Mechem, Pub. Off. §§ 850, 853; 2 Dill.Mun.Corp. (3d Ed.) § 980. Touching the liability of municipalities in their corporate capacity, the rule is succinctly stated in Wright v. City Council of Augusta, 78 Ga. 241, 6 Am.St.Rep. 256, as follows: "Whenever the negligence or nonfeasance of the ordinary agents and servants of the corporation, as distinguished from that of its officers, causes the injury, or when the loss results from acts merely ministerial, as distinguished from such as are legislative and governmental in character, exercised for the sole and immediate benefit of the public, or where the corporation is exercising, as a corporation, its private franchise, powers, and privileges, which belong to it for its immediate corporate benefit, or is dealing with property held by it for its corporate advantage, gain, or emolument, though inuring ultimately to the benefit of the general public, then, and only then, it becomes liable for the negligent exercise of such powers, precisely as are individuals." Undeniably, municipalities, when acting through their fire departments in the preservation of property from the devastation of fire, are in the exercise of a purely governmental function, and their officers and agents represent the public, as an arm of the state, for whose acts the corporations are not liable. It was so held in Hafford v. City of New Bedford, 16 Gray, 297, where certain of the firemen negligently ran a hose carriage against the plaintiff and injured him. So, in Fisher v. City of Boston, 104 Mass. 87, 6 Am.Rep. 196, where the hose provided by the city, and in use through the fire department, burst, causing the injury complained of. In this case Mr. Justice Gray, now of the supreme court of the United States, says: "But the extinguishment of fires is not for the immediate advantage of the town in its corporate capacity; nor is any part of the expense thereof authorized to be assessed upon owners of buildings, or any other special class of persons whose property is peculiarly benefited or protected thereby. In the absence of express statute, therefore, municipal corporations are no more liable to actions for injuries occasioned by reason of negligence in using or keeping in repair the fire engines owned by them, than in the case of a town house or a public way. *** It makes no difference whether the legislature itself prescribes the duties of the officers charged with the repair and management of fire engines, or delegates to the city or town the definition of those duties by ordinance or bylaw. However appointed or elected, such persons are public officers, who perform duties imposed by law for the benefit of all the citizens, the performance of which the city or town has no control over, and derives no benefit from, in its corporate capacity. The acts of such public officers are their own official acts, and not the acts of the municipal corporation or its agents." And in Mendel v. City of Wheeling, 28 W.Va. 233, 57 Am.Rep. 665, where the city authorities allowed pipes laid to plaintiff's premises for conducting water thereto, to be used for fire and other purposes, to fill up so as not to be serviceable in the extinguishment of a fire, to his damage, the same doctrine was upheld. So, also, in Welsh v. Village of Rutland, 56 Vt. 228, 48 Am.Rep. 762, where the engineer of the fire department, under the direction of the village trustees, in thawing out a hydrant connected with an aqueduct flooded the street with water, which becoming frozen, the plaintiff was injured by falling thereon. And in Wilcox v. City of Chicago, 107 Ill. 334, 47 Am.Rep. 434, where the plaintiff sustained injury by the collision of a hook and ladder wagon with his carriage; also in Edgerly v. Concord, 62 N.H. 8, 13 Am.St.Rep. 533, where the injury occurred through fright of the plaintiff's horse, caused by a stream of water thrown from a hydrant by the officers of the fire department, at the request of the mayor of the city, for the purpose of testing the capacity of the hydrant; and, again, in Kies v. City of Erie, 135 Pa. 144, 19 A. 942, 20 Am.St.Rep. 867, where the door of an engine house was so negligently operated that, when being opened upon the sidewalk, it struck a pedestrian and injured him. Many other cases might be cited, but these are sufficient to illustrate the doctrine. The nonliability of the municipality is based upon the idea that it is acting in a public or governmental capacity, as an arm of the state, and hence the doctrine of respondent superior is without application. But the case at bar is distinguishable from any of these cases, or any that we have been able to find applying the doctrine referred to therein. Here the city was acting in the discharge of a legal duty to repair...