McCarty v. Bauer

By the Court, Crozier, C. J. Two questions are made in the argument: First. McCarty being the city engineer and doing the work he performed for Bauer, as such, is not liable unless it were negligently done. Second. He was not liable if it were done in a private capacity, if he exercised in, and brought to the performance thereof, ordinary care and a reasonable amount of skill, although he may have made a mistake. An ordinance of the city required McCarty to survey and mark the boundaries of lots within the city when called upon so to do by private individuals, and prescribed his fees therefor. He had no discretion to refuse when. [241] called upon to perform such services, but this did not constitute him an agent of the city for that purpose. Neither the city nor any private person was hound by the surveys he might make when acting at the request of an individual. His report was not conclusive as to the boundaries of the lot. His certificate could not be given in evidence as settling the boundary. He did not do it for the city. When the corporation makes public improvements and he acts under its direction, then he is its agent, and his act is the act of the city; and if any person is damaged thereby, it and not he is liable. Now, as to the other question. Whether he acted as city engineer or as a professional surveyor, he was not hound to the exercise of more than reasonable caro and skill. If ho did the work in the former capacity, he was liable for negligence or fraud only; if in the latter then he would not only be liable for negligence or fraud, but for a waut of skill. In neither capacity does he insurfe the correctness of his work. The law exacts that of no man. A man exercising the functions of an office must discharge his duties carefully, diligently and honestly, and if he does so he will not be liable for damages. But when a man holds himself out to the public as a professional man, he engages to do moro. lie thereby agrees with those who employ him to do the work, not only carefully, diligently and honestly, but skillfully. Absolute correctness is not to be the test of the amount of skill the law requires. A reasonable amount of skill is all he is bound to bring to the discharge of his duties. Upon the trial of the case at bar, the manner in which McCarty made the survey of the lot was a material question, and it was a question of fact to be determined by the jury. They were to determino the amount of care and skill he did exercise in performing the work, but the court was to determine what amount would absolve him from liability in case ho made a mistake. There having been [242] testimony on both sides as to the manner in which the work was done, it was necessary that the jury be informed of the rule of law in order to arrive at a correct conclusion. The third instruction embodied a legal proposition necessarily arising upon the pleadings, and the testimony shows it to have been applicable to the case. It should have been given to the jury; and especially so, as nothing whatever had been said to the jury by the court upon the subject of it. The judgment will be reversed and the cause sent back with directions to the District Court to sustain the motion for a new trial.