Young v. Juneau Cnty.

Decision Date08 February 1927
PartiesYOUNG v. JUNEAU COUNTY. NECEDAH MFG. CO. v. JUNEAU COUNTY.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Juneau County; Emery W. Crosby, Judge.

Actions by H. L. Young and by the Necedah Manufacturing Company against Juneau County. From orders overruling demurrers to plaintiffs' complaints, the defendant appeals. Affirmed.--[By Editorial Staff.]

There was an appeal from an order overruling a demurrer to the plaintiff's complaint in each case. The cases have been considered together, and will be disposed of in one opinion. The complaints are substantially alike.Robert P. Clark, Dist. Atty., of Elroy (J. T. Dithmar, of Elroy, of counsel), for appellant.

Goggins, Brazeau & Graves, of Wisconsin Rapids, for respondents.

ROSENBERRY, J.

In the action begun by the Necedah Manufacturing Company, the complaint was as follows:

Plaintiff alleges: That at the times hereinafter stated, and for a long time prior thereto, the defendant, Juneau county, was the owner of a gravel pit situated within the fire limits of the village of Necedah, in said county, adjacent and adjoining the business district of said village, and in close proximity to the onestory shingle roof frame stucco building owned and occupied by the plaintiff as a manufacturing plant, situated on Main street in said village.

That the defendant was at said times, and for a long time prior thereto had been, through its agents and employees, engaged in the digging and removing for its use and for sale gravel and road building material by means of a steam shovel operated by a hoist engine, owned, operated and controlled by said county.

That the hoist engine used as aforesaid in the operation and control of said mechanical shovel was, at said time, and had been for many months prior thereto, defective and out of repair, in that the flues, grates, and draughts were broken, worn out, and defective, and in that the same was not equipped with a spark arrester, or any device calculated or intended to prevent sparks being emitted from the smoke stack of said engine.

That, as a result of the worn-out and defective condition of said engine, great volumes of sparks were emitted at all times during the operation of said steam shovel, subjecting the adjoining property, as well as all other buildings, within the fire limits of said village, to almost continual danger of destruction by fire.

That the public danger created through the negligent acts of the employees and servants of said defendant was known by, and repeatedly communicated to, the officers of said county charged with the duties of supervising and directing the operations upon the property of said county, notwithstanding which no efforts were made to remove and reduce said hazards, or to repair or to replace said defective hoist engine, but the negligent operation of the same was continued through the season of 1925.

Plaintiff further alleges that on the 5th day of June, 1925, while said hoist engine was being operated by defendant company in its defective and worn-out condition as aforesaid, large quantities of sparks were emitted from the smokestack thereof, setting fire to the onestory shingle roof frame stucco building owned and occupied by the plaintiff as a manufacturing plant, situated on Main street in said village, in close proximity to said hoist engine, causing the complete destruction of said building, and the machinery, equipment, and contents thereof.

That plaintiff sustained damages by reason of the destruction of said property as aforesaid in the sum of $25,688.38.

That a written verified statement of the plaintiff's claim was duly filed as required by statute with the county clerk of said county on the 2d day of November, 1925, and was wholly disallowed by action of the county board of supervisors of said county on the 21st day of November, 1925, which date is within six months from the date of the commencement of this action.

That plaintiff is now the owner and holder of said claim and cause of action, and the full amount of said loss, with interest, is payable to it.”

The contention of the defendant is that the complaint is grounded upon negligence; that counties are not liable for the negligence of agents and employees engaged in the discharge of a governmental function; and, second, that the corporate existence of the plaintiff is not alleged, as required by section 286.02. The demurrer raises an interesting question. For a history of the doctrine of government liability in tort, see an article by Edwin M. Borchard of Yale Law School, 36 Yale Law Journal, 1, and a discussion of the law of the subject by the same author in a series of articles, 34 Yale Law Journal, 1, 129, 229. The author says:

“The reason for this long-continued and growing injustice (exemption of governments from liability for injuries to citizens) in Anglo-American law rests, of course, upon a medieval English theory that ‘the King can do no wrong,’ which, without sufficient understanding, was introduced with the common law into this country, and has survived mainly by reason of its antiquity. The facts that the conditions which gave it birth and that the theory of absolutism which kept it alive in England never prevailed in this country, and have since been discarded by the most monarchial countries of Europe, have nevertheless been unavailing to secure legislative reconsideration of the propriety and justification of the rule that the state is not legally liable for the torts of its officers. To be sure, we profess to ease the conscience by according the injured individual an action against the wrongdoing officer--frequently a person without pecuniary responsibility--or else, under our decentralized system of administration, by permitting an action against political subdivisions of the state and local bodies and corporations for injuries inflicted when acting in their ‘private’ or ‘corporate’ as distinguished from their ‘governmental’ capacities. * * *

The difficulty, of course, lies in the fact that we consider ourselves bound by the fetters of a medieval doctrine, often regarded as having the institutional impregnability of an article of faith, which never had much, if any, justification, and that legislatures have been unwilling to re-examine the whole subject from the point of view of theory and history, in order to bring the law into harmony with the practical exigencies of modern life.”

In the concluding paragraph upon the law of the subject he says:

“The community will gain by promoting respect among its members for its fairness and justice, and, instead of relying upon antiquated formulas to escape liability, it will meet the exigencies of modern organized life by discharging what the rest of the world recognizes as just obligations.”

Whether we agree with the learned author or not, he has made a valuable contribution to the literature of the subject, and pointed out many of the inconsistencies as well as injustices which result from a too rigid application of the doctrine. Happily, however, we are not left to wander unguided in a wilderness of authority, nor required to make a too rigid application of the rule. The rule exempting governmental agencies from liability for tort has been relaxed in this state by statute. Section 81.15 makes municipalities liable for damage caused a traveler by insufficiency or want of repair of highways. Section 66.07 makes counties and cities liable for mob violence, which is liability for failure to perform a purely governmental function--furnish adequate protection to life and property. From an early day the distinction between a municipality acting in a governmental and in a proprietary capacity has been recognized (see Evans v. Sheboygan, 153 Wis. 287, 141 N. W. 265, 45 L. R. A. [N. S.] 98), where the cases are collected and reviewed; and, where the municipality is acting in a governmental capacity, it is liable if it creates or maintains a nuisance, or if the relation between the injured person and the municipality be that of one proprietor to another. The cases cannot be classified with exactness, for now one factor is emphasized and now another. Compare Apfelbacher v State, 160 Wis. 565, at page 575, 152 N. W. 144, with Folk v. Milwaukee, 108 Wis. 359, 84 N. W. 420. As was said in Apfelbacher v. State, if there is to be further exemption from liabilty, it must be by way of legislative action rather than judicial interpretation. We are cited to many cases from other jurisdictions by the appellants where the distinctions made in the jurisprudence of this state have not been drawn. We do not feel called upon, however, to distinguish these cases from our own, but shall point out again the basis of the distinction which has already been made in the jurisprudence of this state. In Matson v. Dane County, 172 Wis. 522, 179 N. W. 774, where the authorities were carefully reviewed, it is said:

“The decisions of this court fully sustain the principle that, while a municipality is not held liable for damages resulting from mere performance of governmental functions, such exception applies only when the city's relation to the injured person is governmental, such as a traveler on the highway, but not when its relation to the injured one is that of a proprietor.”

The basis of liability in the Matson Case and the cases cited there does not rest upon the fact that a nuisance was maintained, nor that the municipality was engaged in the discharge of a proprietary as distinguished from a governmental function, but upon the relation which existed between the party injured and the municipality. When the relation is that of Governor and governed, and the officer of the municipality is negligent in the discharge of his duty, no liability arises, but, when the relation between the municipality and the injured pa...

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