Kinnischtzke v. City of Glen Ullin , 79 N.D. 495 ( 1953 )

Morris, Ch. J.

On rehearing. "We granted a rehearing at which the case was reargued in behalf of both parties as to all nonprocedural questions. The appellant challenges the correctness of our decision as a departure from the rule that in North Dakota municipalities are not liable for tort under these decisions : Vail v. Town of Amenia, 4 ND 239, 59 NW 1092; Montain v. City of Fargo, 38 ND 432, 166 NW 416, LRA1918C 600, Ann Cas 1918D 826; Moulton v. City of Fargo, 39 ND 502, 167 NW 717, LRA1918D 1108; Hadler v. North West Agricultural, Live Stock & Fair Ass’n, 61 ND 647, 239 NW 736; Holgerson v. City of Devils Lake, 63 ND 155, 246 NW 641, 34 NCCA 463. All of these eases involve the liability of political subdivisions of the state or municipalities for personal injuries or death. They are, of course, grounded on negligence. In none of them was recovery permitted. However, they do not establish a general and all inclusive rule that municipalities are not liable for tort.

Vail v. Town of Amenia, supra, involved damages for personal injuries which the plaintiff contended resulted from the failure on the part of the Township of Amenia to properly maintain a bridge in a safe condition. The court, after pointing out that the township was a political subdivision of the state, said:

“The care of highways and bridges devolves primarily upon the state. It is a governmental function, but for negligence in its performance the state is not liable, because the government is not liable to the individual unless made so by statutory or constitutional enactment.” (Italics supplied.)

In Hadler v. North West Agricultural, Live Stock & Fair Ass’n, supra, the plaintiff sought damages for personal injuries received while attending a fair. The court, after discussing the organization of the fair association and the annual appropriation provided therefor by state statute, said:

“Ordinarily such agencies of the state are not responsible on account of the misfeasance or nonfeasance of officers through whom they must act. This is because they are performing governmental functions and the government is not liable to the individual unless made so by statutory or constitutional enactment.” (Italics supplied.)

In none of the cáses cited above was there a statutory or constitutional provision requiring the municipality or subdivision to respond in damages for the injury inflicted. Section 14 of the North Dakota Constitution provides that:

“Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for the owner, . . . .”

Negligence constitutes no exception to this provision, nor is tort of any kind made an exception. If private property is taken or damaged fbr public use, compensation must be made in all cases, regardless of the means employed or the intent or the lack of intent on the part of public officials. There may be instances where private property is injured through the negligence of municipal officials acting in a governmental capacity which would not amount to damaging the property for public use within the meaning of Section 14 of our constitution. See Hamilton v. City of Bismarck, 71 ND 321, 300 NW 631. But that is not the case here. The facts set out in the complaint indicate that damage to property resulted from a governmental activity negligently conducted over a considerable period of time and in such a manner that it became a nuisance.

The appellant argues that damages cannot be recovered in an action in which the basis for recovery is primarily that of negligence for that would be permitting recovery for a tort and would be contrary to the holdings of this court in the cases above cited. In support of this contention appellant cites Mayor v. Studer & Manion Co., 66 ND 190, 262 NW 925, in which we held that a demurrer to a complaint based wholly upon the careless and negligent construction of a highway and culvert should be sustained. It should also be noted, however, we ordered that the plaintiff he permitted to amend the complaint. In this case no attack was made upon the sufficiency of the complaint before trial. After the jury had been chosen and the first witness called, counsel for the appellant stated:

“At this time the defendant, City of Glen Ullin, objects to the introduction of any testimony whatsoever on behalf of the plaintiff in this case on the ground and for the reason that the complaint alleges negligence on the part of the city in connection with the operation of its septic tank ap.d the. disposal of the outflow therefrom and the manner in which the said septic tank and sewage system of the city of Glen Ullin has been managed during the time in question, for the reasoil that under the laws of this State the operation, construction, operation and maintenance of a sewage system, including a septic tank and of the disposal of the outflow from the said system and tank, is purely a governmental function and that under the' cbristitution and statutes of this state the city is not liable for any damage resulting therefrom; particularly is the city not liable for any damage resulting or claiming to result from the negligent operation, construction or maintenance of a sewage disposal plant, sewage system, to personal property.”

This objection was overruled. We think it was properly overruled. It does not directly attack the complaint as failing to state a cause of action, nor does it correctly state the law under our constitution and statutes with respect to the liability of a city for damage to property resulting from its performance of a governmental function. Such an objection, coming as it does at the beginning of the trial without warning to the court or opposing counsel, will be construed strictly against the maker and the pleading against which the attack is made will be most liberally construed.

In Cannon v. Miller, 22 Wash2d 227, 155 P2d 500, 157 ALR 530, it is said:

“'While the overruling of a demurrer to a complaint or the failure to interpose a demurrer thereto does not preclude the adverse party, at the calling of the case for trial, from objecting to the introduction of any evidence on the ground that the complaint. does not state facts sufficient to constitute a cause of action, nevertheless, if the complaint be for the first time attacked in the last-mentioned manner, the pleading will be liberally construed and, in passing upon such objection, the court will bring to the support of the pleading every reasonable intendment and legitimate inference that may be drawn from its allegations and also from the evidence adduced to sustain the plaintiff’s cause.”

In Keller v. Gerber, 114 Utah 345, 199 P2d 562, the court stated:

“There is no doubt that in this jurisdiction, as in most of the code jurisdictions, defendant may, by objection to the receiving of evidence, raise the issue of the sufficiency of the plaintiff’s complaint to state a cause of action. However, this is a procedure which is not looked upon with favor by the courts; it is merely tolerated. And it has been said that where such an objection is made, counsel has the duty of pointing out to the court wherein he considers the complaint defective.” See also James River National Bank v. Purchase, 9 ND 280, 83 NW 7.

“It does not take much of a pleading to be good against an objection to the introduction of evidence.” Estes v. Edgar Zinc Co., 97 Kan 774, 156 P 758, quoted in Wallis v. Carder, 11 Cal App2d 362, 53 P2d 787.

If we construe appellant’s objection as a belated challenge to the sufficiency of the complaint, we must construe that complaint with liberality and, in so doing, we find that, while it pleads negligence, it does set forth certain acts of the city and alleges that those acts “greatly injured the value of his said premises.” The appellant, having elected to defer its attack until the taking of testimony was reached, will not now be permitted to take advantage of a technical situation which might deprive the plaintiff of compensation contemplated by the constitution, and since a new trial must be granted for other reasons expressed in our opinion to which we adhere, we deem it in the interests of justice and orderly procedure, when the case is remanded to the district court, that both parties be permitted to amend their pleadings.

We adhere to our former decision.

Grimson, Christianson, Sathre and Burke, JJ., concur.