The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-04-29
IN THE SUPREME COURT OF THE
TERRITORY OF HAWAII.
OCTOBER TEEN, 1907.

KUMAZO MATSUMURA V. COUNTY
OF HAWAII
Exceptions from Circuit Court, Fourth
Circuit.
Argued January %, 1908.
Decided April %, 1908.
.HARTWELL, G. j., WILDER AND
BALLOU, j.
Counties-liabiIity for torts.
"A county in Hawaii is liable for injury
to private property in the nature of a
trespass caused by the negligent act
of road employee while repairing a
public highway.
OPINION OF THE COURT BY BAL
LOU, j.
(Wilder, j., dissenting.)
Plaintiff having brought an action of
tort against defendant, a demurrer to
the declaration was sustained and the
ease comes here on exceptions. The
declaration alleges that one Keola,
while employed as an agent and servant
of the defendant in maintaining and
constructing a public highway .'did
wilIfully, negligently and in total disre-
gard of the rights and property of the
plaintiff, divert the course of a large
stream of water, then and there flow
ing in a certain wooden fume, that the
said large stream of water so diverted
by the agent and servant of the said
defendant did rush with great force in
to and undermine certain large mound
or bank consisting of earth and rocks,
by the force of the water diverted as
aforesaid, was loosened from its foun-
dations and by the forces of gravity
moved from it's said foundations and
with great force, struck the store,
dwelling house, stables and outhouses of
the said plaintiff in such a manner that
the said dwelling house, store, stables
and outhouses, together with the con-
tents thereof consisting of household
furniture, cooking utensils, personal eff
fects, stock of goods and merchandise,
all the property of the said plaintiff,
and of the total value of 100000,
were utterly demolished and. destroyed
to the damage of the plaintiff in the
sum of 100000"
The sole question for decision is
whether the defendant is liable upon
the facts alleged. Defendant was
created body corporate and polite by
the county act of 1905 Is. L. 1905, Act
39). 1t has power, among other things,
ffto open, construct, maintain and close
up public streets, highways, roads, al
leys, trails and bridges within its boun-
daries,' and "to do all things neees-
sary and proper to carry into execution
the foregoing 1t also has power to
sue and is liable to be sued in its cor
porate name.
The question of the liability of public
as nd
counties, for various classes Of torts is
one upon which there is wide diverg-
ence of opinion. The general rule of
wrongs suffered by individuals would
seem to throw the burden of argument
upon those who would exempt any cor
poration, public or private, from the
general doctrine of liability for its
torts. l Cooley, Torts, Sd Ed. #141;
8 Thompson, Negligence, Sec. 1896. The
numerous exceptions to this rule in the
case of public corporations may be
roughly classified as follows:
U) Cases exempting the public cor
poration from liability on the ground
that il is part of the sovereign power
and cannot be sued without its consent.
This exemption is usually allowed to
counties Cry c. County of Albemarie,
Sc Va. 1875; 9 S. E. 1004) and denied to
cities, (Rankin v. buchanan, 9 Or. 253)
distinction without a difference.
Eastman V. Clackamas County, 80 Fed.
24.) Upon this principle the nature of
the act complained of would be imma-
terial, the sovereign character of the
defendant being a complete defense.
(2) Cases exempting the public cor
poration from liability for a class of
acts called governmental in their ma
ture, (Hughes V. County of Monroe, lat
N. Y. 49) but holding it liable for other
acts called private or corporate. Co
burn v. San Mateo County, IS Fed. $40.
Upon this principle the character of the
defendant, whether city or county,
would seem to be immaterial.
t3) Cases exempting the public cor
poration from liability on the ground
that the relation of master and servant
does not exist between the defendant
and the officer directly responsible.
(Johnsop V. City of Somerville, Mass
81 n. L. 26S.) This reason would seem
to be independent both of the character
of the defendant and the nature of the
act, and to depend ON the position and
mode of appointment of the negligent
officer.
ca Cases in which the legislature
has made specific enactments giving or
withholding rights of action in certain
eases. Baltimore County Commission
ers v. Wilson, "a At. IL. These require
no further mention than to be distin-
guished from mere legislative creation
of the defendant corporation and the
enumeration of its powers and duties,
which still leaves the question of liza
bility one of general law. 1t may be
noted in this connection that the recent
Municipal Act in disposing of cases
which may be pending against the
County of Oahu apparently assumes
that actions for damages may have been
brought Is. L. 1907, Act lis, Sec. s.
The two principal classes being those
allowing exemption on account of the
nature of the tort and those allowing
exemption on account of the character
of the defendant, it will be convenient
to consider first as to whether NUM-
eipal corporation would be liable in this
action, and, second, whether the County
of Hawaii is exempt on account of its
being county.
The declaration is somewhat meager