City of Logansport v. Justice

74 Ind. 378

• Court: Indiana Supreme Court
• Decided: May 15, 1881
• Docket: No. 7435
• Status: Published

Opinions

Woods, J.

This was an action by the appellee, against the appellant, to recover damages for an alleged injury to-the plaintiff, received in driving over a bridge across a certain ditch in the city, which, it was alleged, the city had negligently suffered to be and remain out of repair.

The complaint, having stated the plaintiff’s profession to-be that of a physician and surgeon,- and the injury, alleges, “that before and at that time his professional services, as a. physician and surgeon, were of the value of $500 per month,, and he was realizing and earning that sum therefrom; and by reason of the injury to his body, and his great pain aforesaid, he was wholly incapacitated, and rendered unfit, and unable to practice his profession, and compelled to. remain within doors, and lost, for that time, his aforesaid practice and the emoluments thereof, for a period of eight, months, to his damage of four thousand dollars,” etc.

Issue, trial, verdict and judgment for the plaintiff for the sum of $1,133. -

The questions discussed by counsel for the appellant arise-on the motion, made and overruled, for a new trial; and they will be considered in the order presented by counsel.

The court gave the following instruction upon the subject of notice to the city of the defective condition of the bridge, viz.: “Notice to the councilmen or street commissioner is notice to the city.”

It is insisted that this instruction is wrong in so much as it declares that notice to the councilmen is notice to the city. 'The argument is, that councilmen, regarded as individuals and not as a collective body, or as a committee of the collective body, have no powers over, and are charged with no duties with respect to, the streets of the city, and therefore "that notice to them of a defect in a street does not affect the •city. The argument appears not to be destitute of foundation ; and, if the premise be conceded, the conclusion must probably follow. It may be observed, however, that the argument proceeds upon a phraseology somewhat different from that of the instruction. The latter says “notice to the councilmen,” which naturally, if not necessarily, means all of them; not some, or any of them, as is assumed in the argument. It is not an apt mode of expression, to say “the councilmen,” if reference is intended to the members of the council in their individual capacities and relations ; and embracing, as it naturally does, all the members, the phrase is not inapt, when a reference to the collective body is intended. 'Their coming or being all together, except in connection with their official duties, would be an unusual and improbable occurrence; and a reference to them as “the councilmen,” in the instruction, may well be said to have meant the official body of councilmen. Properly understood, therefore, the instruction was not erroneous upon the theory of law ¡advanced by the counsel; and, if he was apprehensive of a mistaken understanding of it, he should have moved for ¡such explicit qualification or further instruction as was deemed necessary.

But suppose the instruction be interpreted as meaning the councilmen as such, but not as assembled in council; are they, or are they not, charged with any duty in reference to the streets of the city ? Among the powers expressly conferred on the common council, as a body, is to “have exclusive power over the streets, highways, alleys, and bridges, within such city, * * * * and to make repairs thereto.”' Sec. 61, act of March 14th, 1867 ; 1 R. S. 1876, p. 300.. This power, as well as many others conferred in the same-act, greatly concerns and affects the public welfare as well as private rights; and, to the end that public and private interests may not suffer from a failure to exercise, or from, negligence in the exercise of,such powers, the law gives am injured party a remedy in damages against the city itself. To the same end it is provided in the law, that “The common council shall hold stated meetings at least twice in each month, and the mayor, or any five councilmen may call special meetings.” Sec. 47 of act of March 14th, 1867. The-provision for calling special meetings of the council was; doubtless enacted in consideration of the fact, demonstrated by experience, that emergencies will arise, or may be- ’ reasonably expected to occur, requiring the early or immediate action of the council, and when, to await the time for a regular meeting, might entail disaster and loss, or at least the hazard of loss and liability, on the city. The power to-call the council together in special meetings may as well, and perhaps more frequently, be exercised in reference to-the condition of the streets and bridges within the city, as any other subject of control by the council. The power to call such meetings, by necessary implication, imposes the duty to make the call in proper cases. It is true that five councilmen are required to concur in the call, but the duty rests on each who has notice of the emergency, for it is-manifest that the refusal of any one of five who know of the necessity of a meeting, to join the other four in a call therefor, would not excuse the city from liability arising-out of the failure to call such meeting. The duty growing-out of the power to call special meetings, in proper cases, being, therefore, an individual duty imposed on each member of the council, it is incumbent on each, when informed of an emergency which requires the action of the common' •council, to notify the mayor or other councilmen, who may join in the necessary call; and, if he negligently fails to perform this duty, the city is liable to any one who may suffer injury thereby.

We conclude, therefore, that notice to a councilman of a city, of the dangerous condition of a street or bridge within •the city limits, ir: notice to the city. Our conclusion is fortified by a reference to the provisions of the law concerning the duties and powers of the street commissioner, as found in section 28 of the act of March 14th, 1867, already referred to, namely:

“Sec. 28. It shall be the duty of the street commissioner, under the direction of the common council, to superintend the streets, alleys, market places, landings, the construction, repairing, cleaning and lighting the same, the building of sewers and drains, the purchase of the necessary implements of labor and the employment of laborers, and 'shall perform all the other duties incident to his office: Provided, He shall have no power to contract for any debt or liability against the city, unless specially authorized so to do by an order, resolution, or ordinance of the common council, made in accordance with the powers vested in such council by this act.”

But, if the powers of the street commissioner were more ample and free from restriction, it would still be true, under the other provisions of the law to which we have adverted, that the councilmen have power, and a consequent duty, in reference to the stoeets of the city; and, this conceded, nothing is wanting to support the conclusion already announced. The wisdom of the rule, which makes notice to councilmen notice to the city, is shown by a consideration of the fact that councilmen are elected from the different wards of the city, and each is likely to observe, or at least soon to learn of, the dangerous condition of any of the streets or bridges in his ward or neighborhood, and by prompt action lo secure the necessary repairs or protection against danger. In the dissenting opinion it is affirmed to be the universal rule, “that the governing officers of a corporation, such as directors and trustees, must, in order to bind the corporation, act as a collective body, and in regular and lawful session,” and that this rule applies with peculiar force to the officers of municipal corporations “discharging duties for the benefit of the public, and not for the promotion of private interests.”

This principle is doubtless true and applicable to all subjects concerning which the council must act, if at all, as a body, but it does not seem to us to apply to the subject of notice. Notice to the street commissioner, or to the mayor, is npt notice to the council itself, but is notice to the city, on which the council must act, in order to save the city from liability; and the application of the rule contended for would relieve the council from the responsibility of acting ón such notice, as well as upon notice to an individual member of the council. The street commissioner and mayor themselves can do nothing to repair a street or broken bridge, if it requires the incurring of any debt or liability against the city, and yet notice to them is sufficient. The mayor can discharge his duty by calling the council together for the purpose of enabling it to take steps to have the street made good. But suppose the councilmen ignore the call of the mayor, and neglect to assemble in lawful session; the repairs are not made, and some one is injured. The city is held liable, but why? Not on account of any fault of the mayor or street commissioner; they have each done their whole duty, under the powers conferred on them ; not on account of any negligence of the common council, because that has not been in session, and could not act. But, unless there has been fault somewhere and in somebody who represented the city, there can be no liability at all. It is clear that the only fault is in the individual councilmen, in failing to assemble, and for that fault the city is made responsible.

If the doctrine is enforced, that the city is not liable for the conduct of councilmen, but only on account of the action-of the council in lawful session, then notice to all the councilmen, though assembled together in the council hall, would, not be good if given just before the commencement or just after the close of the session. Such a proposition does not. command the assent of conscience and reason, and can hardly be accepted as the rule of law. For the purpose of' receiving notice, the councilmen of a city, under our statute, are at all times the agents of the city, and within a reasonable time after receipt of notice, must move in the discharge-of the duty so imposed upon them. It may be said that the-presumption is that the council has furnished, and put at the-disposal of the ministerial officers, the funds necessary to meet the expenses of emergencies, but presumptions of such a nature are by no means always true, and the rules of law must be applicable in all cases, and wherein the presumptions fail as well as when they hold good. It maybe enough to guard against danger, without making repairs, and the ministerial officers in most cases may be bound and able to provide the necessary safeguards ; but cases are supposable when they cannot do so. The mayor and street commissioner may be absent from the city, or sick, or dead ; or they may have resigned; and in such cases, useless notice to the councilmen be good, there could be no notice at all. In such cases, the public interests imperatively require that the councilmen shall represent the city; and, it being conceded that notice to the councilmen must be good in some cases, there can be no good reason for not holding it good in all cases.

Objection is made to the second instruction given upon, request of the plaintiff because it assumes the existence of a controverted fact, namely, that the bridge in question was within the city. The language of the instruction excepted to is as follows : “If the bridge in question, being within the city, was defective,” etc. We do not regard the instruction as assuming the fact stated. The sentence is hypothetical not only in subject and predicate, but in its subordinate or qualifying clauses as well. See Morgan v. Wattles, 69 Ind. 260. If this were doubtful, it is clear, upon all the. instructions given, the jury was not misled in this respect.

Further objection is made to this instruction because of the clause saying that if “this” (the condition of the bridge) “had continued for several days or weeks, then the city will be presumed to have notice such as will bind her in that regard.” In answer to an interrogatory, the jury found the fact to be that the bridge had been in the condition it was in at the time the plaintiff was injured for “about two weeks,” and, in answer to another interrogatory, it was found that there had been “negligence on the part of the city, or of her street commissioner, at and before the accident, to keep the bridge in repair, when it was discovered to be out of repair.” Under any ordinary circumstances, and the evidence discloses nothing extraordinary, the fact of a bridge having been out of repair and in a dangerous condition so long would warrant an inference of knowledge on the part of the. officers of the city, or some of them having duties in reference thereto, of the fact. See Todd v. The City of Troy, 61 N. Y. 506. If, therefore, not strictly correct, it is manifest that the instruction did the appellant no harm : and, under secs. 101 and 580 of the code, we are forbidden to reverse a case when it appears that the merits of the cause have been fairly tried in the court below. These considerations dispose, too, of the objection made to the first instruction, in reference to the time of the notice to the city. The rule no doubt is, as claimed, that the city “is responsible only for a reasonable diligence to repair the defect or prevent accidents after the unsafe condition of the street is known.” Dillon Municipal Corporations, sec. 790. But from the answers to interrogatories, as well as upon the evidence, it is clear that the city had notice in due time to have made repair of the bridge in question.

It is also claimed that the court erred in permitting the plaintiff to make proof concerning his professional earnings before his injury. Summing up on this topic, the counsel for the appellant says :

“In substance, the plaintiff is permitted to prove what his professional earnings had been per year for five years, and how much his business had fallen off during six months succeeding the injury. This was permitted to go to the jury under an allegation in the complaint, that the plaintiff was damaged in his business, and asking a recovery for the same. The damages are for a personal injury. This evidence was admissible in estimating the value of time lost, but not as a basis of damages. Taken in connection with the demand of the complaint and the instruction of the court, the evidence was clearly admitted as a basis of damages. It has been held that similar evidence is competent, not as a basis of damages, but as a guide to the jury, to aid them in the exercise of their discretion.

“The following are the authorities in support of this proposition: Allison v. Chandler, 11 Mich. 542; Taylor v. Dustin, 43 N. H. 493; Simmons v. Brown, 5 R. I. 299; Wade v. Leroy, 20 How. 34; Lincoln v. The Saratoga, etc., R. R. Co., 23 Wend. 425; The New Jersey Ex. Co. v. Nichols, 33 N. J. 434; Ballou v. Farnum, 11 Allen, 73.”

In addition to these cases cited by counsel, see in point The City of Indianapolis v. Gaston, 58 Ind. 224; The Town of Elkhart v. Ritter, 66 Ind. 136.

We have no doubt the testimony was admissible, and, indeed, the proposition of counsel for the appellant concedes as much. It did not furnish the measure of the damages to which the plaintiff was entitled, but the jury had a right to consider it in estimating the compensation to be awarded ; and it is evident from the amount of the verdict, that this is the use they made of it. It is enough, however, to meet the exception to its introduction, that the evidence was admissible for any purpose. If the court gave any instruction authorizing a misuse of the evidence, exception should have been saved to the instruction. It has not been pointed •out wherein the instructions were wrong in this direction.

We find no available error in the record.

Judgment affirmed, with costs.