The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-04-29

Of the many confusing and usually
| indefensible exemptions from municipal
| liability none seems to fit this case
| This is not a case of negligent failure
| to repair a public work but lack Of due
| care in the execution of work ordered
| by the corporation. Cooley, Torts, &c
| ed. +74I Is is not the act of an cleo
tive or public officer Of whom the rela-
ton of master and servant may be
| doubtful, but of a servant selected by
| the supervisors themselves. 5 Thomp.
son, Negligence, See. 5792. 1t is not the
act of the county in planning public
work (Johnson V. District of Columbia
11S L. S. 49,, but in the ministerial
function of carrying out that plan.
Thompson, Negligence, Sec. 1874. The
only possible exemption applicable
seems to be that taken in those eases
which draw a distinction between the
governmental and corporate functions
of municipality (Moffit V. Asheville,
103 n. C. 237). The typical case is that
of nonfeasance in the face of a duty i'm
posed upon the corporation, and it is
upon this class of cases, which includes
actions for injuries resulting from the
negligent failure to repair highways,
that there is the greatest conflict of au-
thority. The leading cases denying liza
bility upon this are Hill V. Boston, 122
Mass. 344, and Detroit V. Blackeby, Fl
Mich. 81. Opposed to these are the
cases represented by Barnes V. District
of Columbia, 81 U. s. $40, repeatedly
followed District of Columbia V.
Woodbury., 1876 U. S. 450) and cited
with approval even when subsequent
decisions have been controlled by local
or admiralty law. Detroit V. Osborne,
135 u. S. 1872; Workman V. New York
City, 179 q. s. $50, 574.
We need not enter into discussion
of these authorities, however, nor even
into those holding that the repair of
highways is properly classed as a cor
porate and not governmental function
(Coburn V. San Mateo County, IS Fed.
$50; Barree V. City of Cape Girardeau,
1877 Mo- 3S2; 95 s. w. 1907, because we
are of the opinion that under no proper
conception of the doctrine of municipal
immunity in the performance of govern
mental functions can it be held to in
elude immunity for negligence resulting
in the direct invasion of plaintiff pri-
vate right as an adjacent land owner.
Before examining the authorities we
may restate the question from a differ
emit point of view. 1t will be observed
that the injury in any case may result
from nonfeasance or misfeasance and
that the latter class may be again d.
vided so that we find injuries resulting
from % nonfeasanee, (2) the negli-
gent performance of the act, (3) the
necessary consequences of the act, and
a. intentional trespass. Each of these
four may in turn result in the invasion
of (a) public on {b) private rights.
When we take into consideration the
fact that almost every case of negli-
gence may be viewed indifferently
either as omission or as commission
Il Street, Foundations Legal Liability,
S6), it is not strange that there is con-
fusion in the application of the theory
of governmental immunity among these
classes of eases.
We have already left the subject of
nonfeasanee resulting in the invasion of
a public right as unnecessary to decide
intentional trespass upon a private
right for which the municipality is al
ways held responsible (Hawks v.
Charlemort, 107 Mass. Ala; City of
Omaha v. Goft, so Neb.s 81; SO N. w.
1907, except in those cases which deny
the existence of the relation of master
and servant. Manners v. Haverhill,
135 Mass. 165. Such cases naturally
find nc difference in principle between
nonfeasance and misfeasance. johnson
v. City of Somerville, (Mass.) 81 N. E.
268. The matter of the relationship of
master and servant in public corpora
tions, while not arising upon the decla-
ration In this case, is, however another
subject upon which there is consider
able conflict Workman ". New York
City, 179 U. s. $50
The case at bar is concerned only
with the invasion of private right
through misfeasance of the defendant s
agent, either as a necessary result of
his wrongful act or because of the neg
ligent manner in which it was done.
Upon either theory municipal corpora
ton would be liable.
1t is true that the horse of a fire de-
partment trespassing on the plaintiff 8
lawn has been held to be doing so in a
governmental capacity Cunningham "
Seattle, 40 Wash. SO; 50 Pac. 143), and
that a city dump cart loaded with house
ashes may run over pedestrians with
while one loaded with steam
engine ashes might give right of ac-
ton (Haley v. Boston, 191 Mass. 291;
II N. E. s8S; 5 L. r. A. IN. 81 1005),
but these are merely the reductio ad alb
surdum of those cases which fail to OBJ
serve limitations which have been fire.
quently pointed out Dillon, Nun.
Corp. Sd ed. Sec $50. Even Hill vi
Boston, 122 Mass. 344, 35s, the leading
case on this subject, cites authorities
holding the municipality liable in cases
like the present, saying:
I'm such eases, the cause of action is
not neglect in the performance of cor
porate duty, rendering public work
unfit for the purposes for which it was
intended, but is the doing of a wrong
full act, causing direct injury to the
property of another, outside the limits
of the public work. +"
This limitation was pointed out and
applied by Chief Justice Shaw in an
early ease. Referring to the privilege
extended to governmental work, he
says:
But this presupposes that the public
work Tins authorized will he exacutad