Opinion
Department One
Appeal from a judgment of the Superior Court of the city and county of San Francisco.
COUNSEL:
The claim should have been presented to the board of supervisors for allowance.
The defendant is not liable, because the sewer was constructed in accordance with a plan adopted by the city and county. It could only be liable for a failure to keep it in repair after its construction. (City of Denver v. Capelli, 4 Colo. 25; Whart. on Negligence, § 260; Dill. on Mun. Corp., 3d ed. §§ 949, 953, 1046, et seq .; Sherman & Redf. on Negligence, § 127; Child v. Boston, 4 Allen, 41, 42; Detroit v. Beckman , 34 Mich. 125; Carr v. Northern Liberties , 35 Pa. St. 324; Commissioners v. Duckett , 20 Md. 476.) In adopting the plan, the city authorities acted in a judicial capacity, and their action cannot be called in question in a suit for damages. (Cooley on Torts, 408.)
J. F. Cowdery, City and County Attorney, for Appellant.
M. G. Cobb, and J. P. Meux, for Respondent.
A municipal corporation is responsible for damages resulting from work done by its officers and servants, although done in pursuance of a plan adopted by it, where the plan is defective and insufficient. (2 Dillon Mun. Corp., 3d ed., §§ 1048, 1049, 1050, 1051; Wharton's Neg., §§ 264, 956; Ross v. City of Madison , 1 Ind. 281; Indianapolis v. Huffer , 30 Ind. 235; Rowe v. Portsmouth , 56 N.H. 291; Rochester W. L. Co. v. Rochester , 3 N.Y. 463; City of Leavenworth v. Casey, McCahon, Kan. 124; Barnes v. Dist. Columbia , 91 U.S. 540 and cases; City of Denver v. Dunsmore, 2 W. C. Rep. 841; Guerrin v. San Francisco, S.Ct. Rec., vol. 333, pp. 266 et seq ., not reported; Jessup v. San Francisco, id., vol. 484, pp. 245 et seq ., not reported; Briggs v. Light Boats, 11 Allen, 157.)
The same liability exists as to municipal corporations for injuries to person or property, as obtains against individuals. (Mersey Dock Cases, 11 House Lords Cases, 686; Parnaby v. Lancaster Canal Co ., 11 A. & E. 223; Weightman v. Corp. Washington, 1 Black, 39; City of Denver v. Dunsmore, supra ; Barnes v. Dist. Columbia, supra, and cases there cited.)
JUDGES: McKinstry, J. McKee, J., and Ross, J., concurred.
OPINION
McKINSTRY, Judge
1. The defendant is responsible for damages caused as alleged in the complaint, even if it was part of a plan adopted by the board of supervisors, that the sewers mentioned in the complaint should be left open at places through which their contents flowed on the plaintiff's land. (Guerrin v. San Francisco, No. 6090; Jessup v. San Francisco, No. 6842.)
2. Section 4072 of the Political Code is inapplicable to the city and county of San Francisco. (Pol. C. 4087.) No section or clause of the statutes which constitute the charter of San Francisco, requires a claim or demand against the municipality to be presented to the supervisors before suit can be brought upon it. In People v. Supervisors , 28 Cal. 431, it was intimated (although the point was not involved in the determination of the case) that the provisions of the Act of 1855, which made the presentation of a claim against a county to the supervisors, and its rejection by them, a prerequisite to a suit upon it, applied to the city and county of San Francisco. Even if that case could be held to be authoritative as to the point prior to the adoption of the Codes, the Act of 1855 was repealed by the Political Code; and as we have seen, the clause of that Code as to presentation is expressly declared to be inapplicable to San Francisco.
Judgment affirmed.