the test for distinguishing governmental from proprietary functions is “whether the act performed is for the common good of all, that is, for the public, or whether it is for the special benefit or profit of the corporate entity”
How later courts described this case
- the test for distinguishing governmental from proprietary functions is “whether the act performed is for the common good of all, that is, for the public, or whether it is for the special benefit or profit of the corporate entity”
Written by the judges who cited it.
The opinion
Blake, J.
(dissenting) — I am opposed to the extension of the doctrine of immunity from liability of municipal corporations for neglig’ence to the operation of motor vehicles on the streets and highways, except as to fire apparatus, police cars, and ambulances responding to emergency calls.
It is true that the suggested limitation is not recognized by a majority of the courts, and that it was expressly repudiated by our ovni fire horse cases
(Lynch v. North
Yakima, 37 Wash. 657 , 80 Pac. 79 , 12 L. R. A. (N. 8.) 261;
Cunningham v. Seattle,
40 Wash. 59 , 82 Pac. 143 ), decided in 1905. But if the principle laid
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down in those cases be deemed to be controlling, it is time, in the light of modern conditions of traffic on the streets and highways, that it be reexamined. There are at least two reasons justifying a departure from the rule of those cases: First, they were four to three decisions; second, there is a distinct trend in modern authority to limit rather than extend the doctrine of immunity — particularly as applied to the operation of motor vehicles.
Johnston v. Chicago,
258 Ill. 494 , 101 N. E. 960 , Ann. Cas. 1914B, 572, 45 L. R. A. (N. S.) 1167;
Jones v. Sioux City,
185 Iowa 1178 , 170 N. W. 445 , 10 A. L. R. 474;
Oklahoma City v. Foster, 118
Okla. 120, 247 Pac. 80 , 47 A. L. R. 822;
Maxwell v. Miami,
87 Fla. 107 , 100 So. 147 , 33 A. L. R. 682;
Tallarhassee v. Kaufman,
87 Fla. 119 , 100 So. 150 . The
Jones
and
Foster
cases involved negligent maintenance and/or operation of police cars. The
Maxwell
and
Kaufman
cases involved the negligent operation of fire apparatus.
Our own case of
Hewitt v. Seattle,
62 Wash. 377 , 113 Pac. 1084 , 32 L. R. A. (N. S.) 632, is in line with this modern trend. In that case, the court held the city liable to a pedestrian negligently run down by its superintendent of streets while in the performance of his duty. It is true that the holding is predicated on the theory that the city, in the maintenance of its streets, is acting in a proprietary, not a governmental, capacity. Therefore, it is liable for the negligence of its employee in operating the automobile.
In the instant case, the court holds that, in operating the sanitarium, the city was acting in a governmental capacity. Therefore, it is not liable for the negligence of the driver of the supply truck. It seems to me this distinction is based upon pure fiction. The function with which the court is really concerned in these cases is not the operation of a sanitarium or the
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maintenance of streets, but the operation of motor vehicles on the highways. The supply truck and the automobile driven by the superintendent of streets are equally menacing to life and limb, and are equally unnecessary to the governmental existence of the municipality. If the city is liable for the negligent operation of the one, I can see no sound reason why it should' be immune from liability for the negligent operation of the other.
The illogical .consequences exemplified by these two cases are bound to follow, if liability is to be determined by the character of the municipal department to which the vehicle is assigned for service, rather than by the character of use to which the vehicle is put. For, the line of demarcation between what is and what is not a governmental function is very thin. In final analysis, the category into which a function falls depends on the viewpoint of a majority of the court in any particular case. By a majority of one, the supreme court of the United States has just held that the water system of New York city “was created and is conducted in the exercise of the city’s governmental functions.”
Brush v. Commission of Internal Revenue,
300 U. S. 352 , 57 S. Ct. 495 .
On the other hand, this court has held that, “in the maintenance and operation of its watér works, ’ ’ a municipality acts “in a proprietary and not a governmental capacity,”
(Bjork v. Tacoma,
76 Wash. 225 , 135 Pac. 1005 , 48 L. R. A. (N. S.) 331) notwithstanding, as pointed out in the
Brush
case:
“ ‘No higher police duty rests upon municipal authority . . . than that of furnishing an ample supply of pure and wholesome water for public and domestic uses. The preservation of the health of the community is best obtained by the discharge of this duty, to say nothing of the preservation of property from fire, so constant an attendant upon crowded conditions of municipal life.’ ”