Wilson v. City of Laramie

• Decision Date: 09 November 1948
• Docket Number: 2409 and 2410
• Parties: HENRY P. WILSON, Administrator of the Estate of Lawrence Eugene Wilson, Deceased, Plaintiff and Appellant, v. CITY OF LARAMIE, WYOMING, a Municipal Corporation, and Herbert Amonly Conger, Defendants and Respondents. MR. and MRS. ALFRED HALSTEAD as individuals and as the parents and natural guardians and next friend of Larry Halstead, Plaintiffs and Appellants, v. CITY OF LARAMIE, WYOMING, a Municipal Corporation, and Herbert Amonly Conger, Defendants and Respondents
• Court: Wyoming Supreme Court

199 P.2d 119

65 Wyo. 234

HENRY P. WILSON, Administrator of the Estate of Lawrence Eugene Wilson, Deceased, Plaintiff and Appellant, v. CITY OF LARAMIE, WYOMING, a Municipal Corporation, and Herbert Amonly Conger, Defendants and Respondents.

MR. and MRS. ALFRED HALSTEAD as individuals and as the parents and natural guardians and next friend of Larry Halstead, Plaintiffs and Appellants, v. CITY OF LARAMIE, WYOMING, a Municipal Corporation, and Herbert Amonly Conger, Defendants and Respondents

Nos. 2409 and 2410

Supreme Court of Wyoming

November 9, 1948

APPEAL from District Court, Albany County; V. J. TIDBALL, Judge.

Actions by Henry P. Wilson, as administrator of the estate of Lawrence Eugene Wilson, a minor, deceased, and by Alfred Halstead and wife, individually and as parents, natural guardians and next friends of Larry Halstead, a minor against the City of Laramie and another for the death of plaintiff administrator's intestate and injuries to the minor, Halstead, while trying to get off of a city tractor rolling down a hill out of control. From judgments sustaining general demurrers to plaintiffs' amended petitions plaintiffs appeal.

Affirmed.

For the Appellants, the causes were submitted upon the brief and also oral argument of A. Joseph Williams of Cheyenne, Wyoming, and G. R. McConnell of Laramie, Wyoming.

POINTS OF COUNSEL FOR APPELLANTS

In the State of Wyoming, municipal corporations are liable for damages growing out of the negligent performance of proprietary functions.

Kent v City of Cheyenne, 2 Wyo. 6; Seaman v. Big Horn Canal Ass'n., 29 Wyo. 391; Ramirez v. City of Cheyenne, 34 Wyo. 67; Opitz v. Newcastle, 35 Wyo. 358 and 370; White v. City of Casper, 35 Wyo 371; Quest v. Town of Upton, 36 Wyo. 1; Cody v. Soth, 36 Wyo. 66; Wickstrom v. City of Laramie, 37 Wyo. 389; Villalpando v. City of Cheyenne, 51 Wyo. 300. Whether the maintaining of a municipal water system is a governmental function or a proprietary function, it is evident that this court holds such function to be proprietary in nature. A municipality, however, that supplies the inhabitants with water does so in its proprietary or business capacity. It is well settled that a municipality has two classes of powers, the one legislative and governmental, the other proprietary or business; and that as to the latter, while having the same powers, they are also subject to the same liabilities as private corporations or individuals. Seaman v. Bighorn Canal Ass'n., 29 Wyo. 391.

By holding that a municipality, in owning and operating a waterworks for the sale of water to its inhabitants, either at cost or at a profit, acts in its "corporate," "proprietary", "private," "quasi-private," "business," or "nongovernmental business" capacity, and therefore is liable for the negligent acts of its officials, the courts have implied that the use of municipal automobiles by its employees in connection with such work is likewise of a corporate and nongovernmental nature. 110 A. L. R. 1117.

For the Respondents, the cause was submitted upon the brief of Alfred M. Pence and David N. Hitchcock, both of Laramie, Wyoming, and oral argument by Mr. Hitchcock.

POINTS OF COUNSEL FOR RESPONDENTS

The line of distinction between what is governmental, and what is proprietary, is sometimes difficult to draw and is, in instances relating to parks, playgrounds and swimming pools, more or less arbitrary. In cases covering the operation of water works, power plants and gas systems, there is no difficulty, and they are clearly proprietary. But we start with this premise: Any activity of the sovereign authority, or one to whom its powers are delegated, is presumed to be governmental; and it follows that if there be uncertainty as to the classification into which the particular activity falls, the doubt shall be resolved in favor of its being governmental rather than proprietary, for the reason that the usual function of government is to act in the interest of the public as a whole. In such a case, where no profit to the municipality is involved, its acts are governmental. Generally speaking, it is only when it steps aside, and, in a sense, enters a zone of private business, or into activities which may be frequently carried on through private enterprises, that its activities become proprietary. Hayes v. Town of Cedar Grove (W. Va. 1944) 30 S.E.2d 726, 156 A. L. R. 702; Governmental immunity is presumed. Wasserman v. City of Kenosha, 258 N.W. 857; City of Wichita Falls v. Robison, 46 S.W. (2nd) 965; Davis v. City of Greenville, 167 S.W. 682; Pleasants v. City of Greensboro, 135 S.E. 321; Reid v. City of Atlanta, 147 S.E. 789; City of Brunswick v. Volpian, 21 S.E. 2nd. 442; Archer v. City of Austell, 23 S.E. 2nd. 512; Brown v. City of Craig, 168 S.W. 2nd. 1080; City of Bellevue v. Hall, 174 S.W. 2nd. 24; Gaines v. Village of Wyoming, 13 Ohio Supp. 38.

The opening, grading and paving of streets are governmental functions, and, in the absence of a statute or a constitutional provision, a municipal corporation is immune from liability in the exercise thereof, regardless of negligence. Douglas v. County Court, 90 W.Va. 47, 110 S.E. 439, 22 A. L. R. 585; Cardor v. Clarksburg, 100 W.Va. 605, 131 S.E. 349; Morgan v. City of Logan, 24 S.E. 2d. 760.

A municipal corporation is entrusted with the care and control of its streets for the use and benefit, not of its own inhabitants merely, but of the whole public, and prescription, which does not run against the State, and should not run against its trustee. Holt v. City of Cheyenne, 22 Wyo. 212.

The power to establish highways resides primarily in the state, to be exercised under legislative authority, subject of course to constitutional restrictions. Where the legislature has imposed the duty of establishing highways upon a county or town such county or town acts as the political agent of the state. The duty of establishing and constructing highways is imposed upon municipalities by public law, and in performing this duty the town is acting only as the political agent of the state. Ross v. Trustees of University, 30 Wyo. 439.

The streets and highways belong to the public. They are built and maintained at public expense for the use of the general public in the ordinary and customary manner. The state, and the city as an arm of the state, has absolute control of the streets in the interest of the public. Weaver v. Public Service Commission, 40 Wyo. 462.

The public streets within the limits of an incorporated city or town are a part of the public highways of the state and belong to the whole people of the state. Parker v. City of Silverton, 220 P. 139, 31 A. L. R. 589.

BLUME, Justice. RINER, C. J. and KIMBALL, J. Concur.

OPINION

BLUME, Justice.

Two actions were consolidated for argument in this court, both brought against the City of Laramie, a municipal corporation, and Herbert Amonly Conger. One action was brought by Henry P. Wilson, as Administrator of the Estate of Lawrence Eugene Wilson, a minor, for damages on account of the death of said minor in an accident hereinafter mentioned. The other action was brought by the father and mother of Larry Halstead, for damages on account of injuries sustained by their child, Larry Halstead, a minor, in the same accident. A general demurrer, filed by the defendants to the amended petitions in the case, was sustained by the trial court on the ground that the petitions did not state facts sufficient to constitute a cause of action, and the plaintiffs have appealed to this court. It is not claimed here that the defendant Conger is liable for damages unless the City of Laramie also is, and we shall therefore consider the subject from that standpoint without considering any liability on the part of the defendant Conger.

The second amended petition in the Wilson case alleges in substance the following facts: The City of Laramie is a municipal corporation, and has general supervision over the pipes and conduits for supplying water to the inhabitants thereof. Prior to the date of the accident herein, the City was engaged in cutting down and lowering the grades of certain streets. In doing so, it uncovered and exposed water pipes and gas pipes belonging to the Rocky Mountain Gas Company. Hence it was necessary to excavate trenches in the streets in order to replace the pipes above mentioned. The Rocky Mountain Gas Company performed the work of excavating trenches, but the City backfilled them, and, in doing so, used a Caterpillar tractor equipped with dozer and scraper equipment. The tractor was operated by the defendant Conger. On July 12, 1941, Conger, after having used the Caterpillar tractor for backfilling as above mentioned parked it on a slope or hill of a vacant lot adjacent to where the work was done and left it unguarded. He "backed said Caterpillar tractor on said hill, with the gears engaged, the dozer and scraper raised, and without any safety device to hold said tractor where it was parked. It was placed by defendant Conger so that when he returned to work, the clutch could be pushed out and the Caterpillar tractor, of its own weight would roll down the hill and then by engaging the gears would cause the engine to start of its own accord, thus avoiding the cranking of said Caterpillar tractor engine." Prior to and on July 12, 1941, one of the lots bordering on the place where the tractor was parked, and other lots adjacent thereto, were used by children as a playground. The tractor was attractive to and dangerous to children. Previously, children had followed the tractor and had been warned not to be around it. After the tractor had been parked and left unguarded, the deceased, Lawrence Eugene Wilson, and other boys climbed onto the tractor and commenced to play thereon. Larry Halstead, a...