This action was commenced by plaintiff Ledbetter against Marvin A. Tucker, Edwin Johnson, and City of Great Falls, defendants, to recover $11,096.75 damages for personal injuries claimed to have been sustained by plaintiff in falling into an open trench dug by the defendant Tucker, under the direction and supervision of the defendant Johnson, a licensed plumber, and extending between the curbing and the sidewalk adjacent to a public street in defendant city.
On March 10, 1948, the cause was brought on for trial and a jury empaneled. It there appearing that the defendant Tucker had neither appeared nor been served with process, the action was dismissed as to him on motion of plaintiff. The objection of the defendants Johnson and City to the introduction of any evidence on the ground that the complaint failed to state facts sufficient to constitute a cause of action against them was sustained by the trial court.
Three days thereafter, for a consideration of $675 paid plaintiff by the defendant Edwin Johnson, a settlement was effected of all claims and damages against such defendant, — a covenant not to sue was executed and the case dismissed as to him.
On March 30, 1948, plaintiff filed an amended complaint. Therein he named the City of Great Falls, as the only defendant and alleged: That on November 6, 1946, the defendant city issued to Edwin Johnson, a licensed plumber, a permit to install water *Page 289 service to the private residence at 620 Eighth Avenue North, owned by Marvin A. Tucker; that immediately after the issuance of said permit "the said Marvin A. Tucker, under the direction and supervision of the said Edwin Johnson, and the permit issued to said Johnson, and as his duly authorized agent, opened, dug and excavated a trench or ditch for the purpose of laying water service pipes from the water service main on Eighth Avenue North to the said residence * * * a portion of said ditch and excavation being located across the boulevard or parking space * * * between the curbing and the sidewalk immediately in front of said residence at 620 Eighth Avenue North in said defendant city;" that between 3:30 and 4:00 o'clock a.m., on the morning of November 26, 1946, plaintiff, while walking from a friend's residence at 618 Eighth Avenue North to his automobile parked on the south side of said avenue "mistook said excavation and trench for a cross walk or foot pavement across said boulevard and * * * stepped into and violently plunged and fell into said open excavation," sustaining the injuries complained of; that at the time of the accident the excavation had been left open, exposed and unfilled for about sixteen days during which time it was not protected by lights, flags, fences, barricades, guards or any safety device to warn or protect the public lawfully using said sidewalk and boulevard. Various provisions of the city's ordinance No. 245 are pleaded which impose upon any person, firm or corporation running any water service pipes in the city the duty to obtain a permit therefor from the city engineer, — to lay the pipes not less than five feet below the ground surface of the street, — to place barricades around the excavations at all times, — to maintain red lights from dark until sunrise, — and to furnish an approved bond of $1,500 conditioned that the permittee "shall properly refill any and all trench or trenches made or dug by him * * * in the streets of the City."
There is no allegation that the city or any of its employees dug the trench. On the contrary, it affirmatively appears from plaintiff's pleading that Marvin A. Tucker, the owner of the dwelling to be served by the installation, acting under the direction *Page 290 and supervision of his plumber, Edwin Johnson, who had obtained a permit therefor, and as the plumber's duly authorized agent, "opened, dug and excavated" the trench wherein plaintiff claims to have fallen.
The city's ordinance governing the issuance of permits to qualified licensed plumbers does not contemplate that the city issue permits to itself for the making by it of excavations in its own streets. It is only where, as here, the work is to be done by others than the city that a permit is required. It was the licensed plumber Johnson, contracting to install water service pipes for the house owner Tucker, who required and obtained a permit to authorize him to dig the trench across the city's boulevard and parking and it was they, — not the city, — who caused the excavation and allowed it to be and exist.
There is no allegation that at or before plaintiff's claimed injuries were received the city had any actual notice of the obstructing excavation so left open and unprotected by the house owner and his plumber.
To the amended complaint the city interposed a general demurrer urging that plaintiff's pleading was fatally defective in failing to state that the city had actual notice of the obstructing excavation and of the conditions thereto attending prior to the happening of the accident as is required before municipal liability may attach.
The trial court sustained the demurrer with prejudice and ordered judgment for the defendant city. From the order and judgment entered against him plaintiff appealed.
It has long been the settled law of most jurisdictions, including this, that if injuries result from a defect or obstruction in a street caused by the act of a third person or by the failure of the municipality to repair, remove, or remedy, in general, such municipality is not liable unless and until it has first had notice of the offending instrumentality or condition or of such facts and circumstances as would, by the exercise of reasonable diligence, lead a person of reasonable prudence and care to such *Page 291 knowledge. 7 McQuillin, Municipal Corporations, 2nd Ed., sec. 2996, p. 288.
The crux, therefore, of the instant lawsuit against the defendant city is notice. Lazich v. City of Butte, 116 Mont. 386,390, 154 P.2d 260, 262.
Notice to a municipality is of two kinds, — actual and constructive. 7 McQuillin, Municipal Corporations, 2nd Ed., sec. 3000, p. 303.
Prior to the year 1937 constructive notice was held to be sufficient under the law of this jurisdiction. McQuillin, Municipal Corporations, 1947 Supplement, 2nd Ed., sec. 3002, p. 1449, note 56; Remesz v. City of Glasgow, 95 Mont. 595, 28 P.2d 468, 470.
In 1937 the legislature amended the law by the enactment of Chapter 122, Laws of 1937, imposing additional limitations upon the liability of municipalities. The Act provides: "Before any city * * * in this state shall be liable for damages to person and/or property for, or on account of, any injury or loss alleged to have been received or suffered by reason of any defect or obstructions in any * * * street, road, sidewalk, * * * park, public ground, * * * or public works of any kind in said city * * * it must first be shown that said city * * * had actual noticeof such defect or obstruction and reasonable opportunity to repair such defect or remove such obstruction before such injuryor damage was received * * * Provided, however, that this section shall not exempt cities * * * from liability for negligence because of failure to properly place signs, markers or signals to warn persons of excavations or other obstructions existing and caused by said city * * * upon any * * * street, * * * sidewalk * * * park, public ground * * * or public works of any kind." (Emphasis supplied.)
In the leading case of Schigley v. City of Waseca, 106 Minn. 94,118 N.W. 259, 262, 19 L.R.A., N.S., 689, 16 Ann. Cas. 169, the court said: "It is thus clear upon principle and authority that the Legislature may grant or deny to individuals a right of action against municipal corporations for injuries resulting from *Page 292 the negligent manner in which streets and highways are maintained. Having this power, it may grant the right of action upon any conditions which it chooses to prescribe. It may therefore provide that the city shall not be liable unless it has had actual notice of the existence of the defect in the street for a designated or reasonable time before the accident." To like effect see: MacMullen v. City of Middletown, 187 N.Y. 37,79 N.E. 863, 11 L.R.A., N.S., 391; McNally v. City of Cohoes, 53 Hun. 202, 6 N.Y.S. 842, affirmed 127 N.Y. 350, 27 N.E. 1043; Gregorius v. City of Corning, 140 A.D. 701, 125 N.Y.S. 534; Casey v. Auburn Telephone Co., Sup., 131 N.Y.S. 1, affirmed 148 A.D. 900,132 N.Y.S. 1123; Forsyth v. City of Saginaw, 158 Mich. 201,122 N.W. 523; Goddard v. City of Lincoln, 69 Neb. 594,96 N.W. 273; Platt v. Newberg, 104 Or. 148, 205 P. 296; Lee v. City of Dallas, Tex. Civ. App., 267 S.W. 1014; Willis v. City of San Antonio, Tex. Civ. App., 267 S.W. 763; Engle v. Mayor and City Council of Cumberland, 180 Md. 465, 25 A.2d 446.
Since no restrictions are imposed upon the legislature by the Constitution of Montana in the matter, it is well settled that the legislature had the power to limit the liability of municipalities as to defective streets and even to wholly exempt them from any liability for injuries resulting from such defects. Empowered as it is to deny to individuals a right of action against municipalities for injuries resulting from defective streets, the legislature has authority to impose such other conditions thereon as it chooses to prescribe. 7 McQuillin, Municipal Corporations, 2nd Ed., sec. 2906, p. 30; Neuenschwander v. Washington Suburban Sanitary Commission, 187 Md. 67,48 A.2d 593, 598; Schigley v. Waseca, supra; Noonan v. City of Portland, 161 Or. 213, 88 P.2d 808.
By a valid positive statutory enactment the 1937 legislature has prescribed, as a condition precedent to municipal liability for injuries resulting from defects or obstructions in the streets caused and existing by reason of the acts or omissions of third persons as is here pleaded, that the municipality first have actual *Page 293 notice of such defect or obstruction. Chapter 122, Laws of 1937.
Plaintiff, with commendable frankness, concedes that his pleading fails to meet the foregoing requirement and condition precedent. At page 5 of his initial brief on this appeal he says: "As stated above, the complaint contains no allegation that the defendant city had any actual notice or knowledge of said open, unprotected and unguarded excavation at the time of the accident to plaintiff, and it is the absence of an allegation of actual notice that the lower court concluded that the complaint was insufficient." The absence of the allegation was fatal to the pleading. The failure to make such essential allegations can be raised either by demurrer or answer. Engle v. Mayor and City Council of Cumberland, supra, and the authorities cited in 25 A.2d at page 448. Compare: Forsyth v. Saginaw, supra, and Gregorius v. City of Corning, supra.
Maring v. City of Billings, 115 Mont. 249, 142 P.2d 361, decided in 1943, was an action to recover damages for personal injuries alleged to have been sustained by a pedestrian in falling into an excavation made and left by one Burt, a plumber, in the parking strip between the curb and the sidewalk in one of the city's streets. There as here the trial court sustained the city's general demurrer to plaintiff's pleading and caused judgment for the city to be entered, from which plaintiff appealed. There the plaintiff, Maude K. Maring, in her complaint alleged: That after alighting from an automobile stopped upon an unimproved street in the city of Billings, she proceeded to walk from the street, then in a muddy condition, toward the sidewalk, stepping upon some boards or planks lying in the parking strip between the street curbing and the sidewalk in front of a new dwelling then under construction; that as she stepped upon them, the boards slipped, causing her to fall into the excavation, some six feet in depth, which the plumber Burt had dug and covered with loose boards pending inspection of his work in installing the water pipes for the new dwelling then being built under permit issued by the city's building inspector, and that plaintiff's injuries, *Page 294 for which she sought to recover damages, resulted from said fall.
In the Maring Case, supra, Mr. Justice Albert Anderson, speaking for the court, said: "The error specified is the sustaining of the demurrer and the entry of judgment for the defendant. The sole question presented is whether the complaint states a cause of action.
"* * * The whole argument has been upon the question of responsibility for the condition of danger in the street and whether the city was involved to the extent that it is liable for the damage. In that aspect of the case the decision would rest on the question of notice and knowledge of the condition by the city, for it is its duty to keep the streets and all public ways in reasonably safe condition for travel.
"The rule is that for any dangerous condition of the streets brought about by the city itself it is responsible, and for any such condition brought about other than by acts done by the city itself the city's responsibility arises upon notice thereof, and for injury resulting to anyone therefrom it is liable only if it `had actual notice of such defect or obstruction and reasonable opportunity to repair such defect or remove such obstruction before such injury or damage was received.' It is so provided by Chapter 122, Laws of 1937, amending section 5080 of the Revised Codes of 1935."
Mr. Chief Justice Johnson, in his specially concurring opinion in the Maring Case, supra, said the complaint was fatally defective in failing to meet the actual notice requirement of Chapter 122, Laws of 1937, and wrote: "* * * Unless we first find that the case meets the requirements of the statute we do not reach the question of negligence. * * * The provision * * * constitutes an enactment that unless actual notice, not constructive or substituted notice, is had, the city shall not be liable. * * * since, with the circumstances alleged, the city did not cause the excavation, and since it had no actual notice thereof prior to the accident, the statute made the city immune from suit for damages regardless of whether in other respects actionable negligence *Page 295 was alleged. Whether or not we agree with the declared legislative policy of municipal immunity is of course not material."
The writer dissented in the Maring Case, urging, on the aspect of the case involving notice to the city, that actual notice of the existence of the defect is not required where the city had issued a permit or order or otherwise authorized another to enter upon and tear up a public street for his private use. This view of the law was never accepted by the court. On the contrary, a majority of the court held the mandate of the statute, Chapter 122, Laws of 1937, to be that unless actual notice is first had of the obstruction the city shall not be liable. The pronouncement so made by the majority of the court was published and, generally speaking, should thereafter be controlling upon the bench and bar as well as upon the municipal officers and public generally.
A court must decide in one way or another each case brought before it, and it must decide it according to some general rule, which is the quality that distinguishes law from individual caprice. When after due consideration, a court has laid down a rule of law, it will ordinarily follow such rule in succeeding cases sufficiently similar in their facts to appear clearly to involve the same principle. Thus does the rule once laid down in a decided case became a precedent for future decisions, thereby achieving some degree of certainty in the law. A known rule is far preferable to treating each new case as a new problem to be decided as may appear "just" to the particular judge or judges then presiding, independently of all that has preceded it. Different men's ideas differ so about abstract justice that, without a more definite guide than what each may consider "just," one could seldom be certain what legal consequences would flow from any course of conduct.
Failing to convince at least two of his associates of the correctness of his interpretation of the principles that should govern the Maring Case, in the consideration of subsequent cases the writer accepted as the law of the land, the construction pronounced *Page 296 by the majority by which the appeal in the Maring Case was determined.
In the more recent case of Lazich v. City of Butte, supra [116 Mont. 386, 154 P.2d 261], decided in 1944, and involving the application of Chapter 122, Laws of 1937, this court said: "It will be noted that the statute provides that the city must have actual notice and a `reasonable opportunity to repair such defect or remove such obstruction,' before any liability for damages shall attach. * * * It is not shown that the city had any `actual notice' of the lumber being upon the sidewalk. Hence it could have had no `reasonable opportunity' to have the lumber removed. However, to meet this situation the plaintiff predicates her action upon the theory that when the city issued the permit to the contractor who did the remodeling work, the city thereby constituted the contractor the city's agent and `actual knowledge' of the contractor was actual knowledge of the city.
"We cannot subscribe to any such theory. * * * In issuing a building permit to the contractor * * * the city of Butte was merely complying with the regulatory provisions of the ordinance. * * * In none of the authorities do we find where one holding a permit or a license issued by a municipality is classified as an agent of the municipality by reason of holding its permit or license. * * *
"Even though we should find the contractor to be the agent of the city yet the plaintiff could still not prevail. The crux of this lawsuit is notice. The statute is unequivocal in its terms. It provides but one kind of notice and that is actual notice.The most that could be said on the granting of the permit or the alleged agency of the contractor would be that it gave thecity constructive notice. That is not sufficient." Emphasis supplied.
In Andrews v. City of Butte, 116 Mont. 69, 147 P.2d 1020, decided in 1944, this court said: "Plaintiff brought this suit against the city of Butte, alleging in his amended complaint that he fell on a broken sidewalk within the city and suffered injuries by reason of the fall. In his amended complaint he sets *Page 297 out that the city of Butte had actual knowledge of the dangerouscondition of the defective sidewalk. * * * Upon the trial he offered proof that he had talked with Frank Curran, the city engineer, concerning the condition of the sidewalk in question, and that Curran had actual notice of the defect some weeksbefore the accident. * * *
"The only question, then, before this court for determination is the proper interpretation of section 5080, Revised Codes of 1935, as amended by Chapter 122 of the Session Laws of 1937. That amendment provides that before any city or town shall be liable for damages to person or to property suffered by reason of any defective sidewalks, `it must first be shown that said city or town had actual notice of such defect or obstruction and reasonable opportunity to repair such defect or remove such obstruction before such injury or damage was received * * *.
"The primary purpose of the statute is to assure that actualnotice is to be given the city. How that actual notice is to be given was not specified. The question in every case such as this revolves around that question of the actual notice to the city through its officials and that actual notice may be proven by any method through competent evidence." Emphasis supplied.
In Sprague v. City of Rochester, 159 N.Y. 20, 53 N.E. 697,699, it is said: "The object of the statute in requiring notice to the city authorities of a defect in a sidewalk, as a prerequisite to a right of action to recover damages for an injury caused thereby, is to give the city a reasonable time to repair the defect and prevent any injury therefrom. It is toprotect the city from liability for imputed negligence, ornegligence that is implied by law from the lapse of time and thefailure to discover the defect. * * * the provision in question is not designed to protect the city against stale claims * * * but to protect it against any claim based on neglect to repairuntil the city has had actual notice and a reasonableopportunity to repair." Emphasis supplied.
The words "actual notice" employed in the statute signify something more than an opportunity to obtain notice by the exercise of due care and diligence. By the amendment requiring *Page 298 actual notice the legislature manifestly designed to prescribe a more definite requirement respecting notice and to impose a more rigorous limitation upon the traveler's right to recover for an injury received. Hurley v. Inhabitants of Bowdoinham, 88 Me. 293,34 A. 72, 74.
Here as in the Maring Case, supra, and in the Lazich Case, supra, the city did not cause the offending obstruction. Under such facts and the construction heretofore given Chapter 122, Laws of 1937, by this court, before the city shall be liable in damages on account of any injury received by reason of such obstruction, it must first be shown that the city "had actual notice of such defect or obstruction and reasonable opportunity to repair such defect or remove such obstruction before such injury or damage was received." Chapter 122, Laws of 1937. This court so held for the city of Billings in the Maring Case — for the city of Butte in the Lazich case and it should so hold for the city of Great Falls in the instant case.
There has been no change in the law since 1937. The same Act of the legislature that rendered the cities of Billings and Butte immune from liability for damages affords like protection and immunity here for the city of Great Falls.
The majority opinion so construes the statute as to make the actual notice requirement apply only to such defects or obstructions as arise and are created without notice, knowledge,"or permission of the city," thereby adding and inserting the last quoted words in the statute, but such enactment as heretofore construed by this court does not render constructivenotice, such as comes to the city merely from the issuance by it of a building or excavating permit, the substitute for, nor the equivalent of, the actual notice required by the express terms of the statute. Lazich v. City of Butte, supra.
In construing the enactment our duty "is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted." Sec. 10519, R.C.M. 1935. "* * * our duty is not to enact, but to expound, the law; not to legislate, but to construe *Page 299 legislation, to apply the law as we find it, and to maintain its integrity as it has been written by a co-ordinate branch of the state government." Cooke v. Holland Furnace Co., 200 Mich. 192,166 N.W. 1013, 1014, L.R.A. 1918E, 552, quoted with approval in Chemielewska v. Butte Superior Min. Co., 81 Mont. 36, 42,261 P. 616, and in Clark v. Olson, 96 Mont. 417, 432,31 P.2d 283.
The cases from other jurisdictions cited and relied upon in the majority opinion could have been persuasive authority prior to 1937. Then constructive notice of a defect or obstruction was deemed sufficient to render a municipality liable, but upon the amending of our law by the enactment of Chapter 122, Laws of 1937, requiring actual notice to the city, rather than constructive notice, such decisions ceased to have any application whatever to the situation here presented.
The former decisions of this court interpreting the 1937 amendment to section 5080, R.C.M. 1935, call for the application of the doctrine of stare decisis which is grounded on public policy and which "has for its object the salutary effect of uniformity, certainty, and stability in the law. * * * It finds its support in the sound principal that when courts have announced, for the guidance and government of individuals and the public, certain controlling principles of law or have given a construction to statutes upon which individuals and the public have relied in making contracts, they ought not, after these principles have been promulgated and after these constructions have been published, to withdraw or overrule them, thereby disturbing contract rights that have been entered into and property rights that have been acquired upon the faith and credit that the principle announced or the construction adopted in the opinion was the law of the land. * * * Parties should not be encouraged to seek re-examination of determined principles and to speculate on a fluctuation of the law with every change in the expounders of it." 14 Am. Jur., "Courts," pages 283, 284, 285, secs. 60, 61.
In sustaining the demurrer to plaintiff's amended complaint and ordering judgment for the defendant city, the learned trial *Page 300 judge gave effect to the provisions of Chapter 122, Laws of 1937, as applied and interpreted by this court in the Maring and Lazich Cases. In the absence of actual notice to it that the private persons causing and in charge of the excavation had failed to protect it by placing any warning signs, lanterns or barricades thereat, the city, by statute is rendered immune from liability for the injuries occasioned and, in my opinion, the judgment should be affirmed.
MR. JUSTICE METCALF concurs in the foregoing dissent.
Rehearing denied January 18, 1950. *Page 301