Wickman v. Housing Authority of Portland

• Decision Date: 13 August 1952
• Citation: 196 Or. 100,247 P.2d 630
• Parties: WICKMAN et al. v. HOUSING AUTHORITY OF PORTLAND.
• Court: Oregon Supreme Court

Page 630

247 P.2d 630

196 Or. 100

WICKMAN et al. v. HOUSING AUTHORITY OF PORTLAND.

Supreme Court of Oregon, En Banc.

Argued June 5, 1952.

Decided Aug. 13, 1952.

Hickson, Dent & Coblens, of Portland, for appellant.

Dusenbery, Martin & Schwab, of Portland, for respondent.

TOOZE, Justice.

This is a damage action for destruction of personal property by fire alleged to have been caused by negligence, brought by Harold J. Wickman, Selma Wickman, and Springfield Fire & Marine Insurance Company, a corporation, as plaintiffs, against Housing Authority of Portland, Oregon, a public corporation, as defendant. A general demurrer to the complaint of plaintiffs was sustained by the trial court, and, plaintiffs refusing to plead further, judgment was entered in favor of defendant, dismissing the action. Plaintiffs appeal.

Omitting formal parts, the complaint alleges:

'I.

'That at all times herein mentioned Springfield Fire & Marine Insurance Company was a California corporation, duly authorized to carry on a fire insurance business in the State of Oregon.

'II.

'That at all times herein mentioned the said Springfield Fire & Marine Insurance Company insured the plaintiffs, Harold J. Wickman and Selma Wickman, against loss by fire of the property and effects under policy # D-51210 up to the amount of $1500.00.

'III.

'That the plaintiffs, Harold J. Wickman and Selma Wickman, at all times herein mentioned were husband and wife, residing together as such husband and wife in the premises known as 8002 N. Commando Street, Portland, Oregon.

'IV.

'That at all times herein mentioned the Housing Authority of Portland, Oregon, was a public corporation, organized under the laws of the State of Oregon, and particularly Section 99-2001 OCLA et seq. and having authority, pursuant to said laws, to own and manage real estate and to do all things necessary in connection therewith.

'V.

'That on or about and prior to June 22, 1951, said defendant operated and was in control of the premises at 8002 N. Commando Street, Portland, Oregon. That on or about and prior to that time said defendant had leased said premises to the plaintiff, Harold J. Wickman, who occupied said premises together with his family as a dwelling in accordance with the terms thereof.

'VI.

'That as a part of said premises and in consideration of the rent agreed to be paid by said Harold J. Wickman, the said defendant furnished a water heater, which at all times belonged to and was in control of said defendant. That said water heater was defective in that it became continually and excessively overheated, which said condition and defects were known to defendant herein. That said defective condition existed for a long time prior to June 22, 1951.

'VII.

'That on or about June 22, 1951, due to the defect in said water heater, a fire was caused to occur therein and said fire consumed the premises in which the plaintiffs, Harold J. Wickman and Selma Wickman, resided and also all of the household goods and furnishings belong [sic] to said Harold J. and Selma Wickman.

'VIII.

'That pursuant to the insurance policy above described plaintiff, Springfield Fire & Marine Insurance Company, was obligated to and did pay to Harold J. Wickman and Selma Wickman the sum of $1500.00 on account of the loss sustained as the result of the fire above described.

'IX.

'That the reasonable value of said property destroyed by the fire through the negligence and carelessness of said defendant was the sum of $5700.00. That said loss was caused solely through the negligence and carelessness of the defendant and by its failure to adequately maintain the premises above described and the fixtures attached thereto, and by its failure to make adequate repairs once the condition was brought to its attention.

'X.

'That by reason of the said payment made by Springfield Fire & Marine Insurance Company to Harold J. Wickman and Selma Wickman plaintiff, Springfield Fire & Marine Insurance Company, became entitled to be subrogated to the rights of said plaintiffs, Harold J. Wickman and Selma Wickman, up to the extent of $1500.00 against said defendant arising from said fire and damage.

'Wherefore, plaintiffs demand judgment against the defendant in the sum of $5700.00, together with costs and disbursements herein.'

In sustaining the demurrer, the trial court entered an order which in part is as follows:

'It appearing that this Court in previous cases before it on the identical question has ruled that the Housing Authority of Portland, Oregon is immune from tort liability while engaged in the discharge of its statutory functions, and that therefore the question is stare decisis as to this Court:

'Now, Therefore, by virtue of the premises aforesaid, it is ordered, adjudged and decreed that defendant's demurrer be, and the same is, hereby sustained, and plaintiffs are hereby allowed ten days in which to plead further.'

The defendant's demurrer to the complaint on the ground that it appeared upon the face thereof that the same did not state facts sufficient to constitute a cause of action was based solely upon the contention that defendant is immune from tort liability. In sustaining the demurrer, the trial judge so held. Therefore, on this appeal we are confronted by one question only; viz., is the defendant Housing Authority immune from tort liability?

It will be observed that, in its order sustaining the demurrer, the trial court mentioned previous cases before the circuit court for Multnomah county, in which that court had ruled that the Housing Authority of Portland, Oregon, is immune from tort liability while engaged in the discharge of its statutory duties.

In defendant's brief we find a list of prior trial court cases in which the precise question raised in the instant litigation was present, and in each of which cases it was determined that the Housing Authority of Portland, Oregon, was immune from tort liability. Those cases are as follows:

1. Abdalla v. Housing Authority of Portland, Multnomah county circuit court, case No. 155797, decided September 13, 1944. Property damage.

2. Garbrielli v. Housing Authority of Portland, Multnomah county circuit court, case No. 155296, decided September 20, 1944. Personal injury.

3. Votion v. Housing Authority of Portland, Multnomah county circuit court, case No. 171780, decided February 1948. Personal injury.

4. Banks, Adm'r v. Housing Authority of Portland, Multnomah county circuit court, case No. 184309, decided March 1949. Death claim.

5. Dunn v. Housing Authority of Portland, U. S. district court for Oregon, civil No. 4254, ¹ Judge McColloch, decided October 1949. Personal injury.

In plaintiffs' reply brief it is pointed out that, in the case of Abdalla v. Housing Authority of Portland, supra, extended consideration was given to the legal problems involved. We have procured a copy of the memorandum opinion of The Honorable James W. Crawford, circuit judge, who presided in that case. The factual situation in the Abdalla case was to all intents and purposes the same as disclosed by the complaint in this action. In his memorandum opinion in the Abdalla case, the able trial judge thoroughly discussed the legal principles involved. We believe he reached the proper conclusion, and we adopt his opinion as the opinion of the court in the matter now under consideration. That opinion follows:

'Re Abdalla et al vs. Housing Authority of Portland, Oregon,--155797:

'This matter was submitted to the court upon a demurrer filed against the further and separate answer and defense on the ground of insufficient facts. The complaint seeks to hold defendant liable for negligence in connection with maintenance and operation of a heating plant in housing facilities operated at Vanport City, whereby fire destroyed certain household furnishings and personal effects owned by plaintiff. The further and separate answer to which the demurrer is addressed alleges the existence of the defendant as a public body corporate created under the housing authority law, the same being found in Sections 99-2001 to 99-2023, O.C.L.A., with amendments. The separate answer and defense alleges that defendant, pursuant to this statutory authority and by reason of war emergency, has provided and controls and operates the housing facilities in question, leasing the same at rents which persons of low income can afford and, as a part of the facility, provides and maintains a heating system. That in furnishing such accommodations and facilities defendant did so at the lowest possible rate consistent with providing decent, safe and sanitary dwelling accommodations without profit to defendant. That 'the furnishing of such accommodations and facilities for persons of low income, including the plaintiffs herein, constitutes a public and governmental use and function * * * and by reason thereof defendant was acting wholly as a governmental agency * * *'.

'In presenting the demurrer in argument and brief, counsel for plaintiffs raise the following points:

'1. The Portland Housing Authority acts in a proprietary capacity in the Vanport City operation, and is, therefore, liable for its tort.

'2. That even if found acting in a governmental capacity, Portland Housing Authority is liable in tort for damage to property.

'3. That the act of creation expressly subjects Portland Housing Authority to an action for damages based on negligence by declaring the Housing Authority shall possess the power to sue and be sued.

'I am satisfied the demurrer must be overruled. So far as the issue of governmental or proprietary capacity is concerned, the Housing Authorities Act, together with decisions discussing the distinction between governmental and proprietary acts clearly lead to the conclusion that it was the legislative intent to set up an authority which should function in a purely governmental capacity. Not only is this expressed in several places in the Act, but the character of the responsibility imposed upon the...