Barry v. City of Butte , 115 Mont. 224 ( 1943 )

I concur in the result, but not in all that is said in the majority opinion.

The city's plea that the W.P.A. installed the catch basin and the evidence that the same was constructed in an improper, unworkmanlike, inefficient and defective manner in my opinion, remove the case from the pale of the "actual notice statute," Chapter 122 of the 1937 Session Laws. (See City of Covington v.Webster, 33 Ky. Law Rep. 649, 110 S.W. 878; Burger v. Cityof Philadelphia, 196 Pa. 41, 46 A. 262; Harper v. City ofEast Orange, 105 N.J.L. 193, 143 A. 435.) The labor having been supplied by the W.P.A., it is clear that the project for this work on the city's streets and alleys was sponsored, authorized and directed by the defendant city.

While the W.P.A. supplied the labor, yet the defendant city supplied the material, plans and supervision and, in the eyes of the law the workmen were performing the work for the city. InCity of Grandview v. Ingle, Tex. Civ. App., 90 S.W.2d 855,857, it is said:

"It is true that the laborers who removed and failed to replace the slab were working under the National Industrial Recovery Act and were receiving their pay from the federal government, but these are not the controlling issues. (39 C.J. 1270, sec. 1456.) `A servant may be loaned or hired by his master for some special purpose so as to become, as to that service, a servant of the party to whom he is loaned or hired, and to impose on the latter the usual liabilities of a master.' (39 C.J. 1274; Missouri, K. T.R. Co. v. McGlamory, Tex. Civ. App., 34 S.W. 359, 361;Gulf, C. S.F.R. Co. v. Shelton, 96 Tex. 301, 73 S.W. 165.) * * *

"We think it is made to appear from the facts heretofore recited that the work in question was being done with the knowledge and consent and under the direction of the municipal officers who had authority to have the work done. * * * It is admitted that McCown and the mayor knew that the ditch was being cleaned and the walk repaired by the relief workers. Under the provisions of the Penal Code (Penal Code, Art. 784), they could have prevented such interference with the streets, but, instead of doing so, they selected the foreman who was to have charge of the relief workers in doing the work in question, and they referred to him all requests for similar work throughout the city. They inspected the work being done by said workmen at the place in question a few hours prior to the accident. It is clear, therefore, that the defect in the crosswalk was caused by workmen who were performing work for the city, with the knowledge and consent and under the direction of the municipal officer of the city, and therefore the municipality is liable for the damages proximately caused thereby. * * *"

The instant case is most similar to the City of Grandviewcase, supra, wherein, respecting the necessity of notice of the defect before the injury, the court said: "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." (See, also, Tyler v. City of Richmond, 168 Va. 308,191 S.E. 625.)

In Nevala v. City of Ironwood, 232 Mich. 316, 205 N.W. 93, 94, 50 A.L.R. 1189, the court said: "When, however, the dangerous condition is caused by agents of the city in the prosecution of their employment, the rule of liability is not based on noticeand failure to repair, but upon the creation of a dangerouscondition by the city." (Emphasis mine.)

Rehearing denied November 16, 1943.