The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1894-03-20
TO SEE" IS TO INSPECT.
The Supreme Cour, Reverses Judg-
ment in the Case Of Merritt
Versus McNally
An Omoor Liable for Damages Re-
sulting from Neglect OF
His Duty.
The suit was Thrown out on Demurrer
but 10 Now Reinstated-lhree
other Decisions.


David Merritt. appellant. versus ID. J. Ne
N.lv al A.. respondsnta McNaliy was
building inspector Of Hslens Ia August
1881 la the latter part OF that month the
Wall Of a two-story stone aud back build
ing in course OF construction next 10 Mer-
,itrs houso fell. Is crushed the building
DESTROYED the furniture snd KILLED MeF-
ritrs infant son. Me ritt instituted suu
against McNallY sui his boaismen for
damages c aiming that the Inspector had
been negligent o! his duties IA not seeing
that the building vas properly and sateI
contracted. Ia she district court Of Lewis
and Clarke coantT the case was throWu oai
On dem urrsrs % she cFouud that she com
pisiut iia not STATE facts sufhcisnt 20 eon-
situate q esass % asiioa. From this an ap-
pssl va tsksn Assocists Justice psMitt
delivered ihe opiaica % tas sagfens soart
IL says.
~ras sfoaal On vA.ea she dsnurrsFs
we're sustained ~ she ceurt below seems -
Be that notaw tastSadiaS hos great the
4amase nav have been watch ths plainti1
suffered. MeNally vas noA b. virtue OF his
of6o.al position. o. Otherwise, 20 be held
liable. lis wasa public officer aud in the
pay OF tbs city o. Helena - building IN
speetor. Is was alleged that IS an officer he
soted so neglissntlJ. OF perhaps u mlght
better be said, 50 negligen'ly failsd TO aea.
shat the damage described resulted. what
ever may have been the early rulings upon
this point 10 seems 10 be settled IN modern
times that where public officer Is exereis-
inc ministerial powers. ami that where be
performs his duties negligently or where
he carslesaly. OF wilfully, or knowingly fails
40 perform the duty al all, and that from
that failure on his part damage results TO
another that such person 30 damaged has
a cause Of action against the officer.
'.It IA also held thstif an officer OF this
sort is TO be liable for damages, 10 mast ap-
pear that the duty imposed upon MIN was
a clear and absoluts one. At the ontset We
will endeAvor 90 0onstrue the word see a.
used in the ordinance dehnlng tas inspec-
to.'a duties. The words are, 'aud 20 SEQ
that each house or houses building or
buildings. are being erected. constructed or
altered. according 80 the ptovlsions. CSC
MoNally would give 20 this word very
literal construction. In his view 10 would
seem 20 mean simply 20 look ~ or observe.
ON the other hand We think the word IS
nssa In the sense Of 20 cause 70 be done or
accom- plishsd.' The Wo see. as used
IN the dinance, is IN she sense
defined by the Century DICTIONARY
a. follows: 10 bring about as
a result: superiatend the execution OF the
performances Of q thing 30 as 20 ensct d
sDaci6ed rasnlt. make sure We are there
fore Of the opinion that the use OF the
word see IN this ordinance. 10 the laying
Of a duty upon she building inspector 10 re-
quire buildings 20 be erected IN aceordancs
with the provisions OF this ordinance. Any
other view Of the meaning OF the word
- . "A
meaningless one. Therefore We may con.
cIude that the duty was clearly imposed
mon the building inspector TO see or TO
require that the building in question was
properly erected.
rears BY the complaint that even II the
duty we're laii upon him 10 require the
binding 70 be properly constructed. yet II
also appears thnt he had no means provided
him OF performing his duty and he Is
therefore not liable. But We arc Of opinion
thai there are allegations IN the complaint
which dispose OF bis contention adversely
40 hin. A total and wIlliul neglect Of ms
dutv is charged IL was his duty 10 visit
and inspect this building and 20 'sse, that
il, 70 require. that IL be properly con-
Gtfueted. lie nos only dad not see or re-
quire that tho building be properly con-
atructed. bat be neglected s. visit or inspect
tine building A. required BY ordinance.
Moreover, he refused TO WISH or inspect the
building: and, turtle rmOre. be kew that
the building was 81 process OF construction,
aud his neglect or refusal to visit aud IN
spect 10. Or 90 see that 10 W properly con
structed. was wrongful. and with know
edge. BY reason of thls neglect aud reiusa.
the accident occurred. SO that the charge
OF the complaint Is. thas tbs ordinance ro-
quired defendant 90 perform certain duties.
and that be knowingly and ~iliully not
only neglected, but refused 90 pe form
them. ana that rs result OF TINS neglect
and refusal tls injury Oncu red but %
does not aDpesr bv the cOmplnint thai d &c
Nauy had NO means by which lie could
visit or INSPECT she building. or sse that ii
vas prop-rly conatructec; nor does It ap
pear that he was unable so g. do
I'VE ars therefore ~ opinion that thi
complai1t Is good on d3mu Ter, aud has d
% be- tue thar McNaily hal not the mean
or ths ability 90 visit ~ ins ect, or See Ga q
the buildInI was properly constructed, %
was prevented from 40 doing, that th
question of the defense % such matter ma
hs determined upon an answer. Inc Oh
Jsotious 90 tie c0mplaiut which We hay
discussed. are those eseutsi BY council
The Judgment OF the district court is re
vsr.ed. EuI the case is fomauIc5, with Dc
struotions % that court to overiule th
d-mu Tsr.'
Chief Justice psmborton ana Assoeiat
Justic Harvo0d concur IN separate 0pIu
400. iu which they SD.
"ln our opinion tho complaint j. o.
vulnerable iu tae points attacked by De
Inurrer. 10 conteudel BY AcNaIY'a cum
SCI on the Argument % tlis court The 10
terUretation that the clause Of section d
the ordinance GA nuestiou, which D Divide
tlst: 10 shall be tle duty 81 ev-r7 in
spector appointed under tie piuYIslouH q
thls act. 90 visit and Inspect eAcn aud al
Louss o. Louse6 buu1Ing OF building
which may be 90 the course % erection
construction Or alteration within tho limit
Of the oty, aud % sec that each house u
Eouses building or buildings, are BEN
erected, constructed or altere1. aocoriIu
60 tue DIVISIONS Of this ordinance lal
upon tlo bu lllna inspector no Tsspousln.
DUTY Of eIartlol of action "a Ll
official capacity. aud authority 20 inspec
ana demand % builds b a compliance wiz
ths provisions - tlHt ordinance. or whs
seeing the same VIC Gted. % az such %
formation Lef1rs otLer agents Of the ca
for tito pur. oso OF puiting IN force a.
means prov ded bY the municipality Tor a
correction % tuev citation ~ 90 ordinance
IL uuteuubie. such Interpretation
neither conformable 90 the definition Of q
o. ms used. a. shoau - dictionaries
EuthoEty, nor IN accordance WITH the cou
mon understand ding Of the 70 CO AM ehe
OF such command OF law applied % su'
1subiect. Or found Ia CONTEXT like ~
uu1s. c0nsIdarstoa. who're Oh the W.
Enough tho ordinance acI1n d e. john
upon she inspector. Ep.OlutBl and compel
stated 20 discharge ths duties therein ~
Gcfibsi.
According % the Interpretation OF cou
sci for respou dents. the building Inspect
might see that the ordinance put uudsr b
monItoTy care was complied with ~ vi
lated With tie same supius inertia on 4