West v. Marion County

• Decision Date: 16 March 1920
• Citation: 95 Or. 529,188 P. 184
• Parties: WEST v. MARION COUNTY.
• Court: Oregon Supreme Court

188 P. 184

95 Or. 529

WEST v. MARION COUNTY.

Supreme Court of Oregon

March 16, 1920

Department 2.

Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge.

Action by Harry West against Marion County, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action against the county to recover damages for injuries resulting to the person of the plaintiff, and to his automobile, caused by the car leaving the road and turning over. The plaintiff claims the injury was caused in whole or in part by the defective and dangerous condition of the road.

The road, where the accident occurred, was near the town of Gervais at a point where the road leading from Oregon City to Salem crossed a gulch or canyon. There was a culvert at the bottom of the gulch over which the road passed, and the approach to this culvert was upon a fill.

The evidence for the plaintiff tended to show that this fill, at the point where the car ran off, was about 7 or 8 feet above the level, and that the top of the fill, or roadbed, at this point was about 16 or 17 feet wide, having narrowed down from a greater width at a point further back from the culvert. There was no rail or guard along the sides. There was some evidence that there was a slight turn in the road to the left going south, at or about the point in question.

It was fair time, and the plaintiff was driving on the road from Oregon City toward Salem. It was dark, and when the plaintiff reached the fill in question, he met a number of automobiles coming from the fair. Several of these had their lights lit and one in particular did not dim its lights, and the reflection in plaintiff's eyes blinded him so he could not see the road. Under these conditions he got too far to the right, and his car ran off the grade and down the bank causing the injuries complained of. Plaintiff brought this action to recover general and special damages in the aggregate amount of $1,950. There was a verdict and judgment in his favor for the sum of $626.80, from which the defendant appeals.

The appellant claims the judgment should be reversed:

First. Because there was no evidence that the claim for damages had been submitted to the county court before the action was brought.

Second. The appellant claims there was no sufficient proof that plaintiff had obtained a license and was lawfully traveling on the highway.

Third. Appellant claims that evidence of another accident at the same place after the main occurrence was erroneously admitted.

Fourth. There was error in refusing an instruction as to the liability of the defendant when the accident was caused by the negligence of a third party.

Max Gehlhar, of Salem (Jas. G. Heltzel, of Salem, on the brief) for appellant.

T. J Cleeton, of Portland (Cleeton & McMenamin, of Portland, on the brief), for respondent.

BENNETT, J. (after stating the facts as above).

Appellant claims that before an action can be commenced against a county on any kind of a claim the same must first be presented to the county court; and, as there is no evidence that this claim was so presented, the motion of the defendant for a nonsuit and directed verdict should have been allowed. This question seems never to have been passed upon directly by this court, in a case where the action was for damages resulting from a tort, and against a county.

The appellant relies upon the cases of Union County v Slocum, 16 Or. 237, 17 P. 876, and Wallowa County v. Oakes, 46 Or. 33, 78 P. 892, both of which were based upon claims against the county for services rendered.

In the Slocum Case the plaintiff had commenced an action in the justice's court to recover for the alleged value of his services in reporting testimony at the request of the committing magistrate. There was a writ of review, and in passing upon the same Judge Thayer, delivering the opinion of the court, said:

"The facts set forth in the complaint did not constitute a cause of action, the services of the respondent alleged therein to have been rendered created no claim against the county of Union, and, if it had, the respondent could not have maintained an action thereon without presenting his account therefor to the county court of said county for audit and allowance."

In Wallowa County v. Oakes, supra, the plaintiff was seeking to recover his fees as a magistrate, in a criminal case. After holding that a justice of the peace is entitled to recover such fees, the court said:

"This brings us to a consideration of the question whether or not an action at law can be maintained against a county to recover a compensation which the law has prescribed for the performance of an official duty. It must be admitted that, as a condition precedent to the right to maintain such action, the claim of the officer for the fees earned must have been presented to and rejected by the county court sitting as a board of county commissioners for the transaction"--citing Union County v. Slocum, supra.

In neither of these cases is there anything to disclose upon what reasoning the conclusion of the court was based, and in neither was there any citation of authorities.

The attorneys for the plaintiff, on the other hand, allege a distinction between such cases, where the claim is upon an implied contract, and cases where a claim is based upon a tort, as in this case, and rely upon Sheridan v. City of Salem, 14 Or. 328, 12 P. 925, Caviness v. City of Vale, 86 Or. 554, 169 P. 95, and Colby v. Portland, 89 Or. 566, 174 P. 1159, 3 A. L. R. 819. In none of these cases was the county a party defendant, but the reasoning seems to be applicable to a case against a county.

Sheridan v. City of Salem, supra, was an action against the city of Salem for injuries caused by a defective walk. There was a provision in the city charter that--

"No claim against the city shall be paid until it is audited and allowed by the common council, and then the treasurer shall pay it upon a warrant drawn upon him by the recorder."

The court said:

"We do not think that these provisions were intended to apply to a claim of this character. * * * All claims arising out of the ordinary expenditures of the city are required to be presented to the common council for allowance, before an action can be maintained thereon. But that arises out of a relation the claimant sustains to the city, created by an employment or contract of some character. Thus, a person who performs service or does something for the city at its request, for which compensation is to be made, tacitly agrees that he will present his claim to the common council for audit and allowance. That is the only mode by which the city can pay him. * * * But in cases of tort, the action is for damages, and the party injured is under no more obligation to present the claim to the corporation than he would be to a private person who had done him a wrong. The reason of the rule only applies to the former class of claims, and not to the latter, and has no application whatever to them."

In Caviness v. City of Vale, supra, the Sheridan Case was cited with approval, and it was held that the provision of the city charter, requiring claims against the city to be audited and allowed by the common council, before they were paid, "did not apply to claims arising ex delicto."

In Colby v. Portland, supra, the two previous cases were again reaffirmed, the court saying:

"We adhere to the conclusion reached in that case by the Chief Justice. We do not believe that this section was ever intended by the framers of the charter to apply to actions ex delicto."

If a claim for a tort does not have to be presented to the city council, notwithstanding a provision that "no claim shall be paid until it is audited and allowed by the common council," we think we would not be justified, in attempting to make a distinction between claims against the city and claims against the county, for tort; where there is absolutely no provision in the law requiring a claim against the county to be submitted to the county court.

Upon the authority of these cases we therefore hold that where the controversy is over a tort, it is not necessary that the claim be presented to the county court before an action can be brought.

The next contention of appellant is that there was no sufficient proof that the plaintiff had obtained an automobile license and was in this respect lawfully traveling upon the road.

Section 6375, L. O. L., provides:

"Whenever any individual, while lawfully traveling upon any highway of this state or bridge upon such highway, the same being a legal county road, shall, without contributory negligence on his part, and without knowledge upon his part of the defect or danger, sustain any loss, damage, or injury in consequence of the defective and dangerous character of such highway or bridge, either to his person or property, he shall be entitled to recover of the county in which such loss, damage, or injury occurred, compensatory damages, not to exceed the sum of $2,000 in any case by an action in the circuit court of such county, or in a justice's court therein, if the amount of damages sued for shall not exceed the sum of $250."

There seems to be some conflict in the authorities as to whether provisions like this in statutes apply in remote matters like obtaining a license or unlawfully traveling on Sunday, which are not directly connected in any way with the cause...