Becker v. Chapple , 72 Mont. 199 ( 1925 )

I concur. In Smith v. Zimmer I expressed the opinion that under the then existing statutes an action of this character could not be maintained against the commissioners. After the decision in that case was rendered, the legislature amended section 1372, Revised Codes of 1907, and in my judgment the only purpose of the amendment was to impose upon county commissioners a positive, legal duty to repair defective public highways where such duty was not imposed theretofore. (Sec. 7, Chap. 141, Laws of 1915.) Whether the commissioners who discharge this duty are entitled to specific compensation therefor is a question which cannot arise in this action. It is elementary that a breach of legal duty constitutes actionable negligence (Fusselman v.Yellowstone V.L. I. Co., 53 Mont. 254, Ann. Cas. 1918B, 420, 163 P. 473), and a breach of the duty imposed by amended section 1372 (now section 1627, Rev. Codes of 1921), renders the county commissioners liable to one who is injured by reason of a defect in a public highway where the negligence of the commissioners is the proximate cause of the injury (sec. 4520, Rev. Codes 1921).

But for the amendment made in 1915 I would still adhere to my views expressed in Smith v. Zimmer.

MR. JUSTICE GALEN, being absent on account of illness, did not hear the argument and takes no part in the foregoing decision.

Rehearing denied January 19, 1925.