Davoust

This action is to recover damages for the death of plaintiff’s wife alleged to have been caused by the negligence of defendant, the city of Alameda, in operating an electric-lighting plant owned by defendant, and used for the purpose of lighting said city and furnishing light to its inhabitants for domestic purposes. The trial court granted a nonsuit and gave judgment for defendant, and from this judgment plaintiff appeals. There is a bill of exceptions which presents the evidence and the rulings of the court.

It does not appear upon what ground the nonsuit was granted; but the main point argued by counsel for respondent is that because the defendant is a municipal corporation it is not liable to pay any damages, even though the death of plaintiff’s wife was caused by the negligent operation of the electric plant. And in support of this contention respondent relies on Winbigler v. City of Los Angeles, 45 Cal. 36 ; Denning v. Stale, 123 Cal. 316 , [ 55 Pac. 1000 ]; Chope v. City of Eureka, 78 Cal. 588 , [ 21 Pac. Rep. 364 , 12 Am. St. Rep. 113 ], and the cases there "cited. These cases undoubtedly establish the rule in this state, although it has been held differently in some…

I concur. The rule is well established in this state that, in the absence of a statutory provision permitting it, an action will not lie against a municipal corporation for damages caused by the negligence of its officers, agents, and servants in the performance of the public or governmental duties of such corporations. (Winbigler v. City of Los Angeles, 45 Cal. 37 ; Howard V. San Francisco, 51 Cal. 52 ; Tranter v. City of Sacramento, 61 Cal. 271 ; Stedman v. San Francisco, 63 Cal. 193 ; Chope v. Eureka, 78 Cal. 589 , [ 21 Pac. 364 , 12 Am. St. Rep. 113 ]; Arnold v. San Jose, 81 Cal. 618 , [ 22 Pac. 877 ] ; Doeg v. Cook, 126 Cal. 213 , [ 58 Pac. 707 , 77 Am. St. Rep. 171 ]; Ukiah v. Ukiah etc. Co., 142 Cal. 182 , [ 75 Pac. 773 , 100 Am. St. Rep. 107 ]; Sievers v. San Francisco, 115 Cal. 654 , [ 47 Pac. 687 , 56 Am. St. Rep. 153 ].) The statement of the rule implies that there are other functions and powers of municipal corporations, for the negligent performance of which by their officers and servants, such corporations are liable. The distinction is clearly stated in the principal opinion. The authorities uniformly hold that the duties arising from the operation of gasworks,…