Worden v. Witt

• Decision Date: 04 April 1895
• Citation: 4 Idaho 404,39 P. 1114
• Parties: WORDEN v. WITT
• Court: Idaho Supreme Court

39 P. 1114

4 Idaho 404

WORDEN v. WITT

Supreme Court of Idaho

April 4, 1895

LIABILITY OF COUNTY COMMISSIONERS.-County commissioners are not individually liable in damages for injuries sustained by reason of defective highways under the laws of Idaho.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Judgment affirmed, with costs.

James W. Reid, for Appellant.

In this action two questions are presented for consideration: 1. Is the municipality--the county of Idaho--liable to the plaintiff? This contention is raised by the original complaint to which a demurrer was sustained. 2. If the municipality is not liable, are defendants individually liable under the facts set out for negligence in the performance of duties imposed on them by law? Liability for injuries such as are set up in this action attaches when the municipality is charged with the duty and invested with the power of keeping its highways in repair. (Buswell's Law of Personal Injuries, sec. 167; County Commrs. v Duckett, 20 Md. 468, 83 Am. Dec. 557.) As to the contention that the plaintiff has a right of action against the defendants, the rule is that where a duty is imposed by the statute and no remedy is prescribed, a common-law right of action accrues, as otherwise in such case there would be a right without a remedy. (County Commrs. v. Duckett, 20 Md. 468, 83 Am. Dec. 557; Rev. Stats., sec. 18; Lehigh County v. Hoffort, 116 Pa. St. 119, 2 Am. Rep. 587, 9 A 177; Hover v. Barkhoof, 44 N.Y. 113; Robinson v. Chamberlain, 34 N.Y. 389, 90 Am. Dec. 713, and note; Bennett v. Whitney, 94 N.Y. 302; Monk v. Town of New Utrecht, 104, N. Y. 556, 11 N.E. 268; County Commrs. v. Duvall, 54 Md. 350, 39 Am. Rep. 393; Eastman v. Clackamas County, 32 F. 24; Amy v. Barkholder, 11 Wall. 136, 20 L. ed. 101; St. Joseph etc. Ins. Co. v. Leland, 90 Mo. 177, 59 Am. Rep. 9, 2 S.W. 431; Nebraska City v. Campbell, 2 Black, 590, 17 L. ed. 271; Weightman v. City of Washington, 1 Black, 39, 17 L. ed. 52.)

J. H. Forney, for Respondents.

The rule that counties are not liable for torts in the absence of statute is universally acknowledged, and the great weight of authority is in favor of the conclusion that, even when a duty is imposed by statute, the county is not liable for failure to perform it, in the absence of express provision creating such liability. (Heigel v. Wichita County, 84 Tex. 382, 31 Am. St. Rep. 63, 19 S.W. 562; Board of Commrs. of El Paso County v. Bish, 18 Colo. 474, 33 P. 184; Bailey v. Lawrence County, 5 S. Dak. 393, 48 Am. St. Rep. 881, 59 N.W. 219; Board of Commrs. of Phillips County v. Churning, 4 Colo. App. 321, 35 P. 918; Templeton v. Linn County, 22 Or. 313, 29 P. 795; Pundman v. St. Charles County, 110 Mo. 594, 19 S.W. 733.) In a legal sense there can be no liability for negligence where the defendants owed the plaintiff no duty. The duty and obligations of the county commissioners are to the public alone. They receive no compensation from and owe no duty to any private individual. They act for the public in general, and are accountable to the public alone for their negligence, and the appropriate remedy for their neglect of duty is by public prosecution. (Garlinghouse v. Jacob, 29 N.Y. 297; Monk v. New Utrecht, 104 N.Y. 557, 11 N.E. 268.) The commissioners of Idaho county, at the time the alleged cause of action arose, were acting as public agents and had no perfect duty imposed upon them by law to keep the highways in their county in repair, and the only duty imposed upon them in this state is an imperfect duty, so far as keeping the highways of the county in repair is concerned, and only extends to the means within their possession and under their control. (Bussell's Law of Personal Injuries, secs. 51, 52; Cooley on Torts, 379 et seq.; Nowell v. Wright, 3 Allen, 166, 80 Am. Dec. 82; Bartlett v. Crozier, 17 Johns. 450, 8 Am. Dec. 428; Lynn v. Adams, 2 Ind. 145.)

HUSTON, J. Morgan, C. J., and Sullivan, J., concur.

OPINION

HUSTON, J.

Plaintiff sued defendants, as commissioners of Idaho county, for injuries alleged to have been sustained by him through defects in a certain bridge in said county, while passing across the same. A general demurrer was interposed to the complaint, which was sustained by the court, and leave given plaintiff to amend, which was done. By agreement of counsel, the title of the case was changed, in the summons and complaint, by striking out the words "Commissioners of Idaho County." The case was tried to a jury, and after the evidence on the part of the plaintiff was submitted, on motion of defendants, the action was dismissed, and judgment entered for defendants for costs, from which judgment, and the order denying motion for new trial, this appeal is taken.

The only question presented by the transcript is the liability of the county commissioners, individually, for the damages claimed to have been sustained by plaintiff on account of the defective bridge.

The first error assigned is the sustaining of the demurrer to the complaint. We think there was no error in this action of the court. It is evident from the record that the ground upon which the court sustained the demurrer to the complaint was the want of a statement of notice to the defendants of the condition of the bridge, as the amended complaint, to which a general demurrer was interposed, and overruled by the court only differs from the...