Pullen v. Eugene

— 324 — Opinion by Mr. Chief Justice Moore. 1-4. It is contended that upon a motion for a new trial, which is an application for a re-examination of an issue of fact, the court was not authorized to set aside the judgment in consequence of having sustained a demurrer to the answer, which ruling is a determination of an issue of law, and hence an error was committed in this respect. A text writer, in discussing the subject of a new trial observes: “The question as to the sufficiency or insufficiency of the evidence to justify the findings raises a plain issue of fact, and is properly determined on a new trial motion. It is otherwise, however, as to the insufficiency of the evidence to justify the judgment. Upon the same principle — viz., that a new trial is a re-examination of an issue of fact — it has been held that errors in rulings upon demurrers to pleadings cannot be reviewed on motion for new trial. It is manifest that this is a correct application of the principle; for, if final judgment is given upon the demurrer for either plaintiff or defendant, there would be no issue of fact, in the case”: Hayne, New Trial and Appeal (Rev. ed.), i 1. It will be remembered that the demurrer herein challenged the sufficiency of only one ground of defense, thereby leaving for trial an issue of fact with respect to the second defense. In 14 Ency. PI. & Pr. 718, in speaking of the statutory grounds for a new trial, it is said: “In the various Codes and practice acts attempts have been made to enumerate' and briefly state the grounds for new trial. Such enumeration does not restrict the inherent power of courts to relieve a party where justice has not been done, or to grant new trials for any other sufficient causes not enumerated, unless the restriction is express.” — 325 — Our statute prescribes seven grounds for setting aside a judgment and granting a new trial: Section 174, L. O. L. This enactment does not restrict an exercise of such right to the particular instances specified: De Vall v. De Vall, 60 Or. 493 (118 Pac. 843, 120 Pac. 13, Ann. Cas. 1914A, 409, 40 L. R. A. (N. S.) 291). If at any time while jurisdiction of cause is retained it is discovered that such an error has been committed as would necessitate a reversal of the final determination reached in the trial of the cause, the court, committing such mistake of law, may, on motion of the party aggrieved, thereby or at its own instance voluntarily set aside the judgment and grant a new trial, thereby avoiding the necessity of an appeal: De Vall v. De Vall, 60 Or. 493 (118 Pac. 843, 120 Pac. 13, Ann. Cas. 1914A, 409, 40 L. R. A. (N. S.) 291); Taylor v. Taylor, 61 Or. 257 (121 Pac. 431, 964); Sullivan v. Wakefield, 65 Or. 528 (133 Pac. 641); L. C. Smith & Bros. Typewriter Co. v. McGeorge, 72 Or. 523 (143 Pac. 905); Frederick & Nelson v. Bard, 74 Or. 457 (145 Pac. 669). If, however, an error was committed in sustaining the demurrer to the first cause of defense, the court on its own initiative was authorized to set aside the judgment and grant a new trial. Nor was it necessary, when the demurrer was sustained, to save an exception to the court’s ruling, since it was made upon a matter in writing and on file in the court: Section 172, L. O. L. 5. The remaining question is whether or not Section 116 of the municipal charter violates a clause of the organic law of the state which provides that: “Every man shall have remedy by due course of law for injury done him in his person, property or reputation” : Article I, Section 10, of the Constitution of Oregon. — 326 — The part of the charter referred to reads: “The City of Eugene shall not in any event he liable in damages to any person for an injury caused by any defect or dangerous place at or in any sidewalk, crosswalk, street, alley, bridge, public grounds, public buildings, or ditch, unless the mayor, chairman of the street committee, or street commissioner shall have had actual notice of such defect or dangerous place, and a reasonable time thereafter in which to repair or remove such defect or dangerous place before the happening of such accident or injury, and in no case shall more than $100 be recovered as damages, from the city for any such accident or injury.” Upon considering the demurrer the trial court was of the opinion that the language last quoted trenched upon the clause of the fundamental law referred to. When, however, the motion for a new trial was interposed, the court, having carefully examined the charter and discovered that its provisions did not exempt any officer of the city from liability for damages from an injury resulting from negligence in failing to keep a sidewalk in repair, set aside the judgment. In Mattson v. Astoria, 39 Or. 577 (65 Pac. 1066, 87 Am. St. Rep. 687), the charter provided that: “Neither the city nor any member of the council thereof shall in any manner be held liable for any damages resulting from a defective condition of any street, alley, or highway thereof.” And it was held that such clause was repugnant to Section 10 of Article I of the original act of the state. In Batdorff v. Oregon City, 53 Or. 402 (100 Pac. 937, 18 Ann. Cas. 287), a clause of the charter exempted Oregon City from liability for loss occasioned by accident on account of the condition of any street, but not exonerating any officer for a casualty caused by the willful neglect or gross negligence of such officer, — 327 — and it was determined that the charter practically denied a remedy to any person injured in conseqeuence of the carelessness of agents of the city. By Section 48 of the charter of the City of Eugene authority is conferred upon the common council to levy, assess and collect taxes upon all nonexempt property (subdivision 1); to appropriate for any item of city expenditure, and provide for the payment of the expenses of the city (subdivision 40); to prevent and remove all obstructions from the streets, alleys, crosswalks, sidewalks, public parks, and other public places, and to repair and clear the same at the expense of the property fronting on such improvement, or of the city (subdivision 51). The common council is also empowered to improve or repair any street or alley, or any part thereof: Section 50. In Batdorff v. Oregon City, 53 Or. 402 (100 Pac. 937, 18 Ann. Cas. 287), it is said: “Though there is a conflict of judicial utterance as to the common-law liability of a city for a failure to keep a street in repair, the weight of authority supports the principle that, when a charter invests a municipal corporation with exclusive control over the streets within its limits, and authorizes it to employ the means necessary to improve and maintain such highways, a duty to the public arises by implication of law to keep the streets that have been opened for travel in a reasonably safe condition; and for any injury that may result from a failure to discharge such obligation the city, without any statutory provision to that effect, must respond in damages. ’ ’ In addition to the authorities there cited, see, also, the notes to the cases of Browning v. City of Springfield, 17 Ill. 143 (63 Am. Dec. 345), Goddard v. Inhabitants of Harpswell, 84 Me. 499 (24 Atl. 958, 30 Am. St. — 328 — Rep. 373), and Batdorff v. Oregon City, 53 Or. 402 (100 Pac. 937, 18 Ann. Cas. 287). To recover for a loss occasioned by official dereliction of duty, not involving more than $100, an action may be maintained against the defendant herein. If, however, the amount of injury caused by the negligence of the defendant or its agents exceeds that sum, an action may be maintained against the officers of the municipality whose duty it was to cause the street to be repaired, and to see that the highway was kept in suitable condition for public travel. Since such a remedy is availing, the section of the charter referred to does not violate the clause of the fundamental law of the state. No error was committed in setting aside the judgment and granting a new trial, and the order to that effect is affirmed. Aeeirmed. Mr. Justice Benson, Mr. Justice Burnett and Mr. Justice McBride concur.