Ledbetter v. City of Great Falls

I concur in the opinion of Mr. Justice Freebourn, but wish to add the following.

Section 5080, R.C.M. 1935, as amended, is divided into two parts. The first part relating to defects and obstructions generally requires actual notice on the part of the city before there can be liability. The second part makes cities and towns liable for negligence in failing to properly place signs, markers or signals to warn persons of excavations or other obstructions "existing and caused by said city or town, upon any bridge, street, alley, road, sidewalk, pavement, culvert, park, public ground, ferryboat or public works of any kind." Under the second part of the statute no notice is necessary when the excavation is caused by the city. Watson v. City of Bozeman, 117 Mont. 5,156 P.2d 178; Barry v. City of Butte, 115 Mont. 224,142 P.2d 571.

I think when the city issues a permit to make an excavation, it is a joint actor in making the excavation and that at least some of the authorities cited in the opinion of Mr. Justice Freebourn so show. Among the cases so holding are these: Tabor v. City of Buffalo, 136 A.D. 258, 120 N.Y.S. 1089; Spiker v. Ottumwa, 193 Iowa 844, 186 N.W. 465; and City of Denver v. Aaron,6 Colo. App. 232, 40 P. 587. And see 63 C.J.S., Municipal Corporations, sec. 799, p. 111, and sec. 825, p. 163. Lasityr v. City of Olympia, 61 Wash. 651, 112 P. 752; Wrighter v. A.A. Adams Stores, 232 A.D. 351, 250 N.Y.S. 98; Leverone v. City of New London, 118 Conn. 463, 173 A. 108.

Under the laws of this state no excavation in a street can be made without the permission of the city council or its authorized officer. Sec. 5039.72, R.C.M. 1935.

The very purpose of requiring a permit from the city to make excavations in the streets "is to give notice to the municipality that a certain street or part thereof is about to be excavated so as to enable the corporate authorities to take the necessary steps to guard the excavation or compel the company to do so, in order that municipal liability for damages for injuries received by third persons from such excavations may not arise." 4 McQuillin, Municipal Corporations, 2nd Edition, sec. 1810, p. 1050.

It is asserted in the dissenting opinion of Mr. Chief Justice Adair that this court in other cases has taken the view that there is no liability on the part of the city in a case of this kind without compliance with the first part of section 5080, as amended. This is not so.

The case of Andrews v. City of Butte, 116 Mont. 69, 147 P.2d 1020, is cited and relied upon in the dissenting opinion.

In that case the defect complained of was a defective sidewalk and it was the first part of section 5080, as amended, that controlled. There was no claim that the case was ruled by the latter part of that section. There was no contention that the defect was caused by the city.

The case of Lazich v. City of Butte, 116 Mont. 386, 154 P.2d 260, is also relied on in the dissenting opinion. That case too was ruled by the first part of section 5080, as amended. There the defect causing the injury was loose boards on a sidewalk. The city had issued a permit to erect a building. It did not issue a permit to pile loose boards on the sidewalk, and the court merely held that the permittee of the building permit was not the agent of the city so as to fasten liability on the city for acts of the builder in placing boards on the sidewalk. There was no possible way of holding that the city placed the loose boards on the sidewalk. Hence it was the first part of section 5080 that controlled.

The case of Maring v. City of Billings, 115 Mont. 249,142 P.2d 361, is also relied upon in the dissenting opinion.

In that case the injury was caused by an unguarded excavation. But it affirmatively appears from the specially concurring opinion of Chief Justice Johnson that no permit was issued for making the excavation. In that case the contention was made that because of a custom followed by the city employees the case stood as if a building permit had been issued. It was pointed out in the opinion of Chief Justice Johnson that the issuance of a building permit was no notice that an excavation was to be made; that there was a vast difference between a building permit and a permit to make an excavation.

Hence that case too was controlled by the first part of section 5080. But in that case Chief Justice Adair in his dissenting opinion said: "It is not, however, necessary in all cases that the city receive actual notice of the defective condition in advance of the happening of the accident or the sustaining of the injury for liability to attach.

"``If the defective condition is due to the act of the municipality itself or of its contractors or employees, no other notice of any kind, either actual or constructive, is necessary in order to render the municipality liable for damages proximately caused thereby.' City of Grandview v. Ingle, Tex. Civ. App., 1936,90 S.W.2d 855, 856. See, also, Barry v. City of Butte, 115 Mont. 224,142 P.2d 571.

"So too, actual notice of the existence of the defect is not required where as is here alleged the city had issued a permit or order or otherwise authorized another to enter upon and tear up a public street for his private use."

Mr. Justice Erickson also took practically the same view in that case as did Chief Justice Adair.

This case is different from any heretofore considered by this court. This case is controlled by the last part of section 5080, R.C.M. 1935, as amended, and it is the first case where this court has ever been called upon to apply that section where the city gave a permit to erect or construct the offending agency. In this case the city gave a permit to make the very excavation that caused the injury complained of. Because of this difference in the facts there is no basis for the claim asserted in the dissenting opinion that we are establishing one rule for Great Falls and a different one for Billings and Butte, nor is there present the requisites for calling forth the salutary principles of stare decisis with which I agree when applicable. Ambiguities in the statute, if any, should be construed against the city. Savannah v. Helmken, 43 Ga. App. 84, 158 S.E. 64.

The conclusion that there is liability on the part of the defendant will not work any particular hardship on cities. Before issuing a permit the city may exact a bond from the permittee conditioned to hold the city harmless from loss or damage because of any negligence in conducting the work. In fact, the ordinance involved here provides for such a bond in the sum of $1,500.00.

I have given but little consideration to the question of the validity of section 5080, as amended, a point not raised by the parties, but treated in the dissenting opinion. I did find that there is a conflict of authority on the point. See the note in 83 A.L.R. 289. I think that question should not be considered by us until and unless it is thoroughly briefed and argued.

The Texas cases cited in the dissenting opinion are from intermediate courts. The Supreme Court of Texas holds that such a provision as our section 5080, as amended, is unconstitutional. Hanks v. City of Port Arthur, 121 Tex. 202, 48 S.W.2d 944, 83 A.L.R. 278.

I have considerable doubt too whether the city's liability to use reasonable care to keep its streets in reasonably safe condition is a statutory liability rather than a common law liability, which seemingly makes a difference in the legislature's right to enact a statute such as section 5080, as amended. But in the consideration of this case I have assumed that the statute is valid.