Davoust v. City of Alameda , 149 Cal. 69 ( 1906 )

McFARLAND, J,

This action is to recover damages for the death of plaintiff’s wife alleged to have been caused by the negligence of defendant, the city of Alameda, in operating an electric-lighting plant owned by defendant, and used for the purpose of lighting said city and furnishing light to its inhabitants for domestic purposes. The trial court granted a nonsuit and gave judgment for defendant, and from this judgment plaintiff appeals. There is a bill of exceptions which presents the evidence and the rulings of the court.

It does not appear upon what ground the nonsuit was granted; but the main point argued by counsel for respondent is that because the defendant is a municipal corporation it is not liable to pay any damages, even though the death of plaintiff’s wife was caused by the negligent operation of the electric plant. And in support of this contention respondent relies on Winbigler v. City of Los Angeles, 45 Cal. 36; Denning v. Stale, 123 Cal. 316, [55 Pac. 1000]; Chope v. City of Eureka,78 Cal. 588, [21 Pac. Rep. 364, 12 Am. St. Rep. 113], and the cases there "cited. These cases undoubtedly establish the rule in this state, although it has been held differently in some other jurisdictions, that a municipal corporation, when exercising governmental functions as an agent of the sovereign power, is not liable for damages caused by the negligence of its employees, unless it is expressly so made liable by statute. But this rule applies to a municipal corporation only when acting in its governmental, political, or public capacity as an instrumentality intrusted by the state with the subordinate control of some public affair. Such a corporation, however, has a double character—governmental, and also proprietary and private—and when acting in the latter capacity its liabilities arising out of either contract or tort are the same as those of natural persons or private corporations. And while we have been referred to no case in this state where the proposition last stated was directly involved, yet in all the cases from this state cited by respondent the acts complained of were connected with the exercise of what has uniformly been held to be governmental functions, such as maintenance of public streets and roads, protection from fire, etc. However, the distinction has been frequently recognized and stated in the California decisions. In Touchard v. Touchard, 5 Cal. 307, the court say: “A corporation, both by the civil and common law, is a person, an artificial person; and although a municipal corporation has delegated to it certain powers of government, it is only in reference to those delegated powers that it will be regarded as a government. In reference to all other of its transactions, such as affect its ownership of property in buying, selling, or granting, and in reference to all matters of contract, it must be looked upon and treated as a private person, and its contracts construed in the same manner and with like effect as those of natural persons.” In San Francisco Gas Co. v. San Francisco, 9 Cal. 469, Justice Field says: “The distinction alluded to refers to the double character of a municipal corporation; its public and political character in which it exercises subordinate and legislative powers, and its private character in which it exercises the powers of an individual or private corporation.” In Ukiah v. Ukiah W. and I Co., 142 Cal. 179, [75 Pac. 775, 100 Am. St. Rep. 107], this court says: “The distinction between the powers conferred on municipal corporations for public purposes and for the general public good, and those conferred for private corporate purposes, is clearly marked by the decisions.” (Citing cases.) In Denning v. State, 123 Cal. 316, [55 Pac. Rep. 1000], it was held that the state was not liable for injury caused plaintiff by negligence of a board of harbor commissioners, because the latter were exercising purely governmental powers; but the distinction above mentioned was clearly stated. The court said, among other things, that the plaintiff, when injured, was employed in a distinct branch of the service,—“viz. the protection against or extinguishment of fires, which, even in the case of municipal corporations, is uniformly held to be the exercise of a purely governmental function; and there is certainly as strong ground for distinguishing between the different functions of the board as there can be for distinguishing between the different functions of a municipal corporation, in the exercise of some of which the corporation is liable for negligence, while in others it is not.” (See, also, Holland v. San Francisco, 7 Cal. 361; Argenti v. San Francisco, 16 Cal. 255; Brown v. Board of Education, 103 Cal. 531, [37 Pac. 503].)

In other jurisdictions the rule that municipal corporations are liable like individuals and private corporations when the injury arises out of their exercise of mere proprietary and private rights has been extremely and frequently decided. Indeed, the rule has become text-book law. In Dillon on Municipal Corporations (sec. 66) the author, having said that a municipal corporation “possesses a double character; one governmental, legislative, or public; the other, in a sense, proprietary or private,” proceeds as follows: “In its governmental or public character, the corporation is made, by the state, one of its instruments, or the local depositary of certain limited and prescribed political powers, to be exercised for the public good on behalf of the state rather than for itself; . . . but in its proprietary or private character, the theory is that the powers are supposed not to be conferred, primarily or chiefly, from considerations connected with the government of the state at large, but for the private advantage of the compact community which is incorporated as a distinct legal personality or corporate individual. ’ ’ There are numerous authorities to the general point of the distinction between the governmental and the proprietary character -of municipal corporations, but it will be sufficient here, on the general question, to refer to the opinion of the supreme court of Oregon in the case of Esberg Cigar Co. v. Portland, 34 Or. 282, [55 Pac. 961, 75 Am. St. Rep. 651], where the authorities are nearly all cited. (See, also, South Carolina v. United States, 199 U. S. 437, [26 Sup. Ct. 110, 116].)

And that the respondent, in maintaining and operating its electric plant, was exercising, not its governmental functions, but its proprietary and private rights, is entirely clear. There is obviously no distinction, so far as the law on the subject is concerned, between an electric plant for furnishing light, which is comparatively a new thing, and a gas plant maintained for the same purpose; and it has been directly held that a municipal corporation operating a gas plant is liable for injury caused by its careless management. In Dillon on Municipal Corporations (sec. 954) it is said: “A municipal corporation owning waterworks or gasworks which supply private consumers on the payment of tolls is liable for the negligence of its agents and servants the same as like private proprietors would be”; and ample authority is cited sustaining the text. In Western S. F. Society v. Philadelphia, 31 Pa. 183, [72 Am. Dee. 730], the Supreme Court of Pennsylvania say: “The supply of gaslight is no more a duty of sovereignty than the supply of water. Both these objects may be accomplished through the agency of individuals or private corporations, and in very many instances they are accomplished by those means. If this power is granted to a borough or a city, it is a special private franchise. . . . The whole investment is the private property of the city, as much so as the lands and houses belonging to it. . . . It [the city] stands on the same footing as would any individual or body of persons upon whom the like special franchises had been conferred.” In San Francisco Gas Co. v. San Francisco, 9 Cal. 469, the court say: “The purchase of gas involves only the exercise of a power of a private corporation; it requires no exercise of any political power. It is as much an act of a private character as if made by a private corporation.” In Esberg Cigar Co. v. Portland, 34 Or. 282, [55 Pac. 961, 75 Am. St. Rep. 651], the facts were that the city of Portland owned and maintained a system of waterworks, and the plaintiff therein brought the action for damages for injuries- caused by the negligent management of the said waterworks; and it was contended for defendant “that the waterworks belonged to the city in its public or governmental capacity, and it therefore is not liable in a common-law action for negligence in constructing or maintaining the same.” But the court held otherwise, and, after alluding to the distinction above stated, said: “In accordance with this distinction it is quite universally held that when a municipal corporation voluntarily undertakes to construct and maintain water or gas works in pursuance of statutory authority, for the purpose of supplying the inhabitants thereof with water or gas at rates established by the city, it is liable for an injury in consequence of its acts in constructing and maintaining such works, the same as a private corporation or individual.” And surely this principle applies as fully to the maintenance of an electric-lighting plant as to the maintenance of waterworks. In the case at bar, the city of Alameda was merely given the optional privilege of constructing and maintaining an electric-lighting plant; no duty was imposed on it to do so. Our conclusion on the main point above discussed is that the respondent cannot escape liability for the negligence averred in the complaint on the ground that it is a municipal corporation.

There are some points made by respondent upon the theory that defendant would not have been liable even if it had been a private person or corporation, which we will allude to briefly. We would not be justified in holding that the evidence was not sufficient to show that the death of appellant’s wife was caused by negligence in operating the electric plant. Whatever the evidence may be on another trial, that which appears in the present record is sufficient to establish the negligence. The contention that appellant cannot recover because his wife at the time of the accident was a trespasser is not maintainable. There was, and for many years had been, a street-railroad station on Monroe Street, and south of that station, and fronting it, there was a vacant uninelosed level lot owned by a person who is in no way involved in this litigation.. Across' the vacant lot there was a way, or beaten path, about four feet wide, which had been for many years—more than five years—used by residents in the neighborhood in going from their homes to the said station on Monroe Street. While plaintiff’s wife was walking along this path, and when within a .few feet from Monroe Street, she came in contact with a live wire of respondent’s electric plant, which was negligently allowed to lie across the path, and was killed by the current. It is not necessary to inquire what would have been the liability of the owner of the lot if he had also owned the electric plant and had been guilty of the negligence which caused her death, although even then the allowance of such a deadly trap probably could not have been excused on the ground that the woman was a trespasser, even if she had been. But no such question arises here. She had a right to be where she was, at least as against every one except the owner of the lot; and the respondent, itself a mere trespasser, is in no position to raise the question as to what duty the owner of the land owes to a trespasser; moreover, she was not a mere trespasser, but a licensee.

Respondent contends that the city was not liable because the grant of authority to maintain the electric plant is given to “the board of trustees of such city,” and not, in terms, to the city; but we do not see any force in this contention. A “city” is a mere intangible thing, existing only in legal contemplation; it could not itself use the franchise, and can act only through its governing body, the board of trustees. A grant of a franchise, in terms, to the city, would be in effect a grant to the body having the power to use it. In Arnold v. San Jose, 81 Cal. 618, [22 Pac. 877], this court said: “A distinction is made by appellant between cases arising under charters making it the duty of a city, as such, to keep the streets open and in repair, and those which make it the duty of the city council to do so. We are unable to see any merit in the point.” And further on in the opinion it is shown that Winbigler v. City of Los Angeles, 45 Cal. 36, does not hold differently.

We do not think that there was a nonjoinder of plaintiffs; and, as to other points, it is sufficient to say that none of them are, in our opinion, tenable or necessary to be specially noticed.

The judgment appealed from is reversed.

Beatty, C. J., Angellotti, J., Henshaw, J., Lorigan, J., and Sloss, J., concurred.