Splinter v. City of Nampa

215 P.2d 999, 70 Idaho 287, 17 A.L.R. 2d 665, 1950 Ida. LEXIS 217

• Court: Idaho Supreme Court
• Decided: April 4, 1950
• Docket: 7538, 7537
• Status: Published

Opinions

GIVENS, Justice.

These two cases were heard together; the main, fundamental issues being common to both. The differences are that appellant Splinter owned the building where the explosion as hereinafter detailed, occurred, alleging the storage tank was installed without his knowledge or consent; appellant Metzer was employed as a waitress in the restaurant, the operators of which were lessees from appellant Splinter.

In addition to allegations detailing the above situation, the amended complaint of appellant Metzer and second amended complaint of appellant Splinter in common allege that: the American Butane Company was engaged in the business of dispensing and selling liquefied gas commonly known as Butane gas for cooking and heating purposes; that the premises in question had been leased October 1, 1945, for three years to the Forbidden Palace Restaurant owned and operated by some six individuals; that thereafter on or about December 3, 1945, the city council of the city of Nampa granted a permit to the Butane Company and lessees to install in the alley at the rear of the building, a 155-gal-lon Butane storage tank, under the direction and supervision of the city engineer; that said tank was installed — ■ “ * * * by removing the concrete wall on the northwesterly side of said vertical shaft to a point approximately 6 inches from the bottom thereof, and excavating a pit northwesterly from said shaft immediately adjacent and parallel to the rear wall of said building of sufficient dimensions to bury said tank approximately two feet deep. That the front end of said tank, to-wit: the end containing the valves and filling devices, protruded into said vertical shaft, and that thereafter, said vertical shaft was used as a means of ingress and egress of hoses used for the purpose of filling said tank with liquefied petroleum gas.” That the shaft above mentioned extended down into the basement of the building, which had lava rock and cement walls and a concrete floor over half thereof, with a stairway from the rear portion of the building into the basement, the shaft being 30 inches in depth, 36 inches in length by 24 inches in width, formerly used to permit the entry of coal and other supplies from the alley into the basement.

The complaints further allege in appropriate language that it was negligent for the Butane Company and the City of Nampa to place the outlet of the tank in this shaft and that so locating the tank caused a situation of peril and constituted a nuisance, menace and hazard to the lives and property of the public in general and to the property of appellant Splinter in particular, in that in replenishing the tank from the company’s tank trucks, gas was apt to be spilled and being heavier than air, would collect and settle in the basement and, if ignited, would explode; that on November 15, 1947, at about eight o’clock in the evening while the tank was being filled by the company, an explosion did take place totally wrecking the building, the basis of the suit for damages by appellant Splinter for the value of the building, and by appellant Metzer for injuries received by her.

General demurrers were interposed in both cases, challenging the complaints as not stating facts sufficient to constitute causes of action against the city, which were sustained and upon defendants’ refusal to plead further, judgments of dismissal were entered — hence these appeals.

The respondents’ pertinent and ultimate contentions as bases to support the ruling sustaining the demurrers, and decisive of the issues, may thus be summarized: that the city in granting the permit was exercising governmental and not proprietary powers; that the proximate cause of injury, both to the building and to appellant Metzer, was the spilling of the gas and not th.e location of the tank, and attendant suggestions of nonforeseeability of damage, effect of intervening independent incidents, contributory negligence disclosed in the complaints, and somewhat inferentially that the city, in connection with its control of the streets and alleys, owes no duty to anyone other than a traveler thereon; and that the permit under section 52-108, I.C. was a complete defense.

We are passing only on the sufficiency of the complaints to state causes of action, though perforce we discuss substantive propositions.

This court has held repeatedly, and it must now be taken as established law, that' the city owns the streets and alleys and has complete and exclusive control and dominion thereof. Carson v. City of Genesee, 9 Idaho 224 at page 253, 74 P. 862, 108 Am.St.Rep. 127; Village of Sand Point v. Doyle, 11 Idaho 642 at page 651, 83 P. 598, 4 L.R.A.,N.S., 810; Boise Development Co., Ltd., v. Boise City, 30 Idaho 675 at page 688, 167 P. 1032.

That the granting of permits to place structures in, under, on, or about the streets and alleys is the exercise of proprietary and not governmental functions; Baillie v. City of Wallace, 24 Idaho 706 at page 713, 135 P. 850; Powers v. Boise City, 22 Idaho 286 at page 294, 125 P. 194.

That in the exercise of proprietary as distinguished from governmental powers, the city is under the same obligations and liabilities and owes the same duty to everyone as does a private owner; Eaton v. City of Weiser, 12 Idaho 544 at page 553, 86 P. 541, 118 Am.St.Rep. 225; Renstrom v. City of Nampa, 48 Idaho 130 at page 135, 279 P. 614; Wilson v. City of Portland, 153 Or. 679, 58 P.2d 257 at page 259; Adams v. City of Toledo, 163 Or. 185, 96 P.2d 1078 at page 1081; Beall v. City of Seattle, 28 Wash. 593, 69 P. 12, 61 L.R.A. 583, 92 Am.St.Rep. 892 at page 900.

That private owners are liable for damages inflicted upon persons in or near their premises by negligence of the owner in connection with his property, though the injury is inflicted outside and beyond the limits of his property. Crow v. Colson, 123 Kan. 702, 256 P. 971 at page 973, 53 A.L.R. 457; Murray v. Frick, 277 Pa. 190, 121 A. 47, 29 A.L.R. 77; Douglas v. Johnson, Sup., 16 N.Y.S.2d 644; Hopper v. Comfort Coal & Lumber Co., Inc., Sup., 80 N.Y.S.2d 351; Brownsey v. General Printing Ink Corp., 118 N.J.L. 505, 193 A. 824; Beckwith v. Somerset Theatres, 139 Me. 65, 27 A.2d 596; Lavelle v. Grace, 348 Pa. 175, 34 A.2d 498, 150 A.L.R. 366; Atchison v. Texas & P. Ry. Co., 143 Tex. 466, 186 S.W.2d 228; Louisville Baseball Club v. Hill, 291 Ky. 333, 164 S.W.2d 398; Delaney v. Supreme Investment Co., 251 Wis. 374, 29 N.W.2d 754; Pitcairn v. Whiteside, 109 Ind.App. 693, 34 N.E.2d 943.

The fundamental reason for municipal liability is its complete and exclusive dominion over and control and ownership of the streets and alleys. This tank could not have been legally placed in the alley without the city’s permission, sanction and consent. 50-1141, I.C.

The scope of liability of a municipality in this state, when exercising proprietary functions, is that resting upon a private owner and a private owner is liable to those outside his premises though not presently or prospectively using the facilities; therefore, on a parity of reasoning, the city is thus liable and the authorities so hold: Dunn v. Boise City, 48 Idaho 550, 283 P. 606; Speir v. City of Brooklyn, City Ct., 19 N.Y.S. 665, Id., 139 N.Y. 6, 34 N.E. 727, 21 L.R.A. 641, 36 Am.St.Rep. 664; Waldron v. City of Utica, 228 App.Div. 37, 238 N.Y.S. 401 at page 407; City of Chicago v. Smith, 95 Ill.App., 335; Nixon v. City of Chicago, 212 Ill.App. 365 at page 375; City of Fort Worth v. Lee, 143 Tex. 551, 186 S.W. 2d 954, 159 A.L.R. 125.

It would be a wholly illogical and' an unjustified anomaly to hold the city liable for negligence to a passerby on the highway injured by the explosion from this tank and to hold it not liable for similar injury to person or property adjacent to the tank, since the city has exclusive control over the alley and both passerby and adjacent property owner must equally, and have a right to, rely on the city to protect them against dangerous, particularly latent, conditions in the street,, potentially hazardous and threatening to' one as much as to the other. The deducible rule is that if it may be reasonably foreseeable that damage may result from a structure negligently placed in, on or about a street by or with the consent of the city, going to the city’s participation in or knowledge, actual or necessarily implied, of the negligence, that the city is liable to anyone, any property, proximately injured thereby; of course, subject to any defense that might be interposed by a private owner or actor.

The degree of care to be exercised must be commensurate with the danger or hazard connected with the activity. The highest degree of care must be exercised in connection with storing, handling, etc., of highly inflammable and explosive substances. Eaton v. City of Weiser, 12 Idaho 544 at page 554, 86 P. 541, 118 Am. St.Rep. 225; Ellis v. Ashton & St. Anthony Power Co., 41 Idaho 106 at page 119, 238 P. 517; Miller v. Gooding Highway Dist., 55 Idaho 258, 41 P.2d 625; Foley v. Northern Calif. Power Co., 14 Cal.App. 401, 112 P. 467; Oklahoma Gas & Electric Co. v. Oklahoma Ry. Co., 77 Okl. 290, 188 P. 331; Tulsa Stockyards Co. v. Moore, 184 Okl. 6, 84 P.2d 37; Scott v. Pacific Power & Light Co., 178 Wash. 647, 35 P.2d 749; Bradley v. Conway Springs Bottling Co., 154 Kan. 282, 118 P.2d 601 at page 605; Roselip v. Raisch, 73 Cal.App.2d 125, 166 P.2d 340 at page 345; Been v. Lummus Co., 76 Cal.App.2d 288, 173 P.2d 34 at page 36.

Respondent argues there is liability only to users of the streets. While many of the cases considering the liability of a municipality for negligence in connection with streets and alleys state such liability is to travelers, they do not declare such liability is exclusive. The converse of the situation is considered in the cases below, but the same principle in reverse applies— hence the authorities are contrary to respondent’s position. Douglas v. Johnson, Hopper v. Comfort Coal & Lumber Co., Inc., Brownsey v. General Printing Ink Corp., Beckwith v. Somerset Theatres, Lavelle v. Grace, Atchison v. Texas & P. Ry. Co., Louisville Baseball Club v. Hill, Delaney v. Supreme Inv. Co., Pitcairn v. Whiteside, supra; White v. Suncook Mills, 91 N.H. 92, 13 A.2d 729; Schaut v. Borough of St. Marys, 141 Pa. Super. 388, 14 A.2d 583.

Applying these principles to the cases at Bar, the complaints not only alleged the city granted the permit, but actively participated, through its city engineer, in placing the tank in the alley with its end, where the intake valves and pipes were located, in this shaft and it is alleged the city, as well as the company, knew or should have known that gas in being transferred from the trucks to the tank was apt to be spilled and the consequent gas fumes, being heavier than air, would descend into the- basement, being highly inflammable and explosive. The complaints thus stated causes of action. Eaton v. City of Weiser, supra; Douglas v. City of Moscow, 50 Idaho 104, 294 P. 334; Smith v. Kansas City, 158 Kan. 213, 146 P.2d 660 at page 663; McClammy v. City of Spokane, 36 Wash. 339, 78 P. 912 at page 913; Boggess v. King County, 150 Wash. 578, 274 P. 188 at page 191; Adams v. City of Toledo, supra; Wheeler v. City of Fort Dodge, 131 Iowa 566, 108 N.W. 1057, 9 L.R.A.,N.S., 146; Moore v. City of Bloomington, 51 Ind.App. 145, 95 N.E. 374; Carlisle v. Union Public Service Co., 137 Kan. 636, 21 P.2d 395 at page 397.

The negligence charged is perfectly plain, simple, direct and unambiguous, being the placing of the tank where it was. The subsequent events which led up to and ultimately resulted in the explosion were merely links in the sequence which inevitably resulted in the disaster. The city not only permitted, but participated in the location of the tank. While others thus intermediately participating may have been likewise liable, it would be for the jury to determine what was the proximate cause and as clearly stated in the authorities cited below, in the absence of a clear break from initial cause to ultimate injury, the initial negligence may be held to be the proximate cause. The ultimate is thus, of course, a question for the trier of the facts when developed. We are merely passing upon the sufficiency of the complaints.

The following cases state the correct rule as to proximate cause and so dispose of that phase and completely refute respondents’ claim of absolution from asserted intervening exculpating causations, and support the complaints: Dunn v. Boise City, supra 48 Idaho at page 555, 283 P.2d 606; Berland v. City of Hailey, 61 Idaho 333 at page 339, 101 P.2d 17; Crow v. Colson, Carlisle v. Union Public Service Co., Miller v. Gooding Highway District, supra; Clark v. E. I. DuPont DeNemours Powder Co., 94 Kan. 268, 146 P. 320, L.R.A.1915E, 479, Ann.Cas.1917B, 340; Konig v. Nevada-California-Oregon Ry., 36 Nev. 181, 135 P. 141; Poole v. Tilford, 99 Or. 585, 195 P. 1114.

Respondents contend appellant Splinter’s complaint discloses he was guilty of contributory negligence because the tank was installed so long prior to the accident, that he knew or was charged with knowledge, or must have known thereof and accepted and acquiesced in the hazard.

The complaint specifically alleges he did not know of the installation and that it was without his consent, and does not give the date of installation. Respondents present no authorities holding that the owner of a building, merely by reason of such relationship, is charged with knowledge of what his tenant does.

Contributory negligence is a matter of defense and its absence need not be negatived in the complaint. Section 5-816, I.C.

These statements of the rules with regard to knowledge seem pertinent and aptly phrased and supported by competent authority:

“As it generally is expressed, a plaintiff will not be held to have been guilty of contributory negligence if it appears that he had no knowledge or means of knowledge of the dangqr, and conversely, he will be deemed to have been guilty if it is shown that he knew or reasonably should have known of the peril and might have avoided it by the exercise of ordinary care.” 38 Am.Jur. 861, § 184, n. 12.

“A plaintiff’s knowledge of the physical characteristics of the offending instrumentality or condition does not, in itself, constitute contributory negligence. * * *, it is the appreciation of, or the opportunity to appreciate, the peril in an instrumentality or condition, rather than a knowledge of its physical characteristics, that bars a plaintiff of recovery for negligence.” 38 Am.Jur. 864, § 188, n. 3-6.

If contributory negligence appears on the face of the complaint, it bars recovery ; but the contributory negligence must appear so conclusively that reasonable minds could not differ with respect thereto. Burns v. Getty, 53 Idaho 347, 24 P.2d 31; Adkins v. Zalasky, 59 Idaho 292 at page 298, 81 P.2d 1090; Allan v. Oregon Short Line R. Co., 60 Idaho 267 at page 272, 90 P.2d 707. Splinter’s complaint herein does not disclose any or such negligence, as a matter of law, to conclude him.

Section 52-108, I.C. refers only to statutes and does not authorize an unlawful, wrongful or negligent act. Village of American Falls v. West, 26 Idaho 301, 142 P. 42; People v. City of Reedley, 66 Cal.App. 409, 226 P. 408; Thompson v. Kraft Cheese Co., 210 Cal. 171, 291 Pac. 204 at page 208; Hassell v. City and County of San Francisco, 11 Cal.2d 168, 78 P.2d 1021 at page 1022. Thus, if this section be applicable to a permit granted by a city, not even an ordinance, if affords no defense.

Judgments are reversed and demurrers ordered overruled and actions reinstated. Costs to appellants.

HOLDEN, C. J., and PORTER, J., concur.