Donahue v. City of Newburyport

Decision Date22 May 1912
Citation211 Mass. 561,98 N.E. 1081
PartiesDONAHUE v. CITY OF NEWBURYPORT.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

R. G. Dodge and F. W. Johnson, of Boston, for plaintiff.

A Withington, of Newburyport, for defendant.

OPINION

RUGG C.J.

The plaintiff's intestate, while a traveler upon a public way in the defendant city, received mortal injuries from the fall of a tree within the way which the tree warden of the defendant was undertaking to remove.

I. He seeks to recover for the death of his intestate first under R. L. c. 171, § 2, as amended by St. 1907, c. 375. This statute permits recovery in the name of the executor or administrator in a sum not less than $500, nor more than $10,000, to be assessed with reference to the decree of culpability of the defendant or his or its servants or agents, 'if a person or corporation by his or its negligence, or by the negligence of his or its agents or servants while engaged in his or its business, causes the death of a person who is in the exercise of due care and not in his or its employment or service.' An ordinance duly adopted by the city council of the defendant before 1910 provided that the board of aldermen should annually appoint a tree warden. St. 1910, c. 363 which took effect before the injury here complained of, imposed upon tree wardens in cities the duties of tree wardens in towns. R. L. c. 53,§§ 12 and 13, as amended by St. 1908, c. 296, §§ 2, 3. These two sections confer upon the tree warden absolute power respecting the setting out, care, maintenance and removal of share trees and the enforcement of all providens of law for their preservation, with the exception of trees under the jurisdiction of park commissioners, but of those also upon request of the park commissioners, and with the further exception that no shade trees shall be planted within a public way without license from the selectmen or road commissioners where such authority has been vested in them. These sections define the power and authority of the tree warden respecting shade trees. They leave substantially nothing in this regard for the municipal action of such cities as have no special charter provision touching the subject.

The planting, maintenance, care and removal of shade trees in highways is a service purely public in its nature, undertaken for the common good and without any element of private gain or special advantage to the municipality. Shade trees, though not originally the subject of legislative action, have been regulated to a very considerable and increasing extent by statute in recent years, until now the whole range of municipal action respecting them is covered. There is little if anything left to local control. The definition of public shade trees is statutory, and the discretion and sound judgment of an officer appointed by local authority controls wholly their care, preservation and removal. Shade trees are not objects of utility, but rather of beauty, grace and refreshment. The motive which prompts their planting and the object to be attained by their cultivation is a general benefit. Although the expediency and extent of municipal activity is left to the wisdom of local instrumentalities of government and is not imperatively determined by the Legislature, the character of such beneficial work is distinctly the public weal rather than any private emolument of the city or town. It is plain that under principles firmly established in our law, the performance of these functions constitutes not private acts, but public service. A person, although appointed and paid by a city or town, performing such duties under a legislative mandate, is not a private agent or servant, but a public officer. The reasoning by which this conclusion is reached has been so often amplified and the rule is so deeply imbedded in our jurisprudence, that it is not necessary to do more than refer to a few of the leading cases: Tindley v. Salem, 137 Mass. 171, 50 Am. Rep. 289; Johnson v. Somerville, 195 Mass. 370, 81 N.E. 268, 10 L. R. A. (N. S.) 715; Postal Telegraph Cable Co. v. Worcester, 202 Mass. 320, 88 N.E. 777; Haley v. Boston, 191 Mass. 291, 77 N.E. 888, 5 L. R. A. (N. S.) 1005; Smith v. Gloucester, 201 Mass. 329, 87 N.E. 626; Hathaway v. Everett, 205 Mass. 246, 91 N.E. 296, 137 Am. St. Rep. 436; Harrington v. Worcester, 186 Mass. 594, 72 N.E. 326; Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332; Bainbridge v. Postmaster Gen. [1906] 1 K. B. 178; Kerr v. Brookline, 208 Mass. 190, 94 N. E 257, 34 L. R. A. (N. S.) 464.

This principle of exoneration is not one of narrow or technical reasoning, but rests upon the broad foundation widely accepted in most jurisdictions, that an agency of government, while engaged upon duties imposed solely for the benefit of the public, is not liable for the negligent performance of such duty. The rule is elaborately discussed and the earlier cases collected by Knowlton, C.J., delivering the opinion in Moynihan v. Todd, 188 Mass. 301, 74 N.E. 367, 108 Am. St. Rep. 473. To the same effect see Rome v. Worcester, 188 Mass. 307, 74 N.E. 370; McCann v. Waltham, 163 Mass. 344, 40 N.E. 20; Barry v. Smith, 191 Mass. 78, 77 N.E. 1099, 5 L. R. A. (N. S.) 1028, 6 Ann. Cas. 817; Pinkerton v. Randolph, 200 Mass. 24, 85 N.E. 892. The duty which the defendant was performing was sovereign and not private in its nature. It might have been taken over by the commonwealth as it has been as to state highways. To hold the defendant under such a statute as this would subject it to responsibility when the state performing the same duty would be exempt. The general rule has an application wider than the law of negligence. For example, it relates to mechanics' liens, Lessard v. Revere, 171 Mass. 294, 50 N.E. 533; to liens for special improvements, Worcester County v. Worcester, 116 Mass. 193, and to taxation of property devoted to public uses, Miller v. Fitchburg, 180 Mass. 32, 61 N.E. 277. It was held in substance, in McCarthy v. Boston, 135 Mass. 197, that the care of shade trees was a function of sovereignty, and that those who had charge of it were public officers, and not agents of the municipality. The same result is implied in Washburn v. Easton, 172 Mass. 525, 52 N.E. 1070, and Chase v. Lowell, 149 Mass. 85, 21 N.E. 233.

The case in this respect is distinguishable from Butman v. Newton, 179 Mass. 1, 60 N.E. 401, 88 Am. St. Rep. 349; Dickinson v. Boston, 188 Mass. 595, 75 N.E. 68, 1 L. R. A. (N. S.) 664, and others of their class, which hold that a municipality, undertaking through its servants and in accordance with its own definite directions the care of public ways, instead of leaving the work to be done by public officers under their official responsibility, may be liable for the neglect of such servant, because of the private interest of the municipality in keeping the public ways in such condition that no financial harm may come to it from failure in their repair. This is an exception to the general rule. It does not extend to a case like the present, because the tree warden performs only duties established by statute according to the discretion reposed in him, and not according to the direction of city officials. He is, therefore, a public officer, and not a 'servant or agent' of the city, as those words are used in St. 1907, c. 375.

But upon broader grounds the defendant must be exonerated from liability. R. L. c. 171, § 2, as amended by St. 1907, c. 375 does not apply to municipalities. It imposes liability upon 'a person or corporation.' Where these two words occur together, corporation is the only word which can be contended to include a city or town, notwithstanding standing R. L. c. 8, § 5, cl. 16. That is a word which in our statutes and decisions has not been used generally to include cities and towns. In a certain sense they are bodies corporate. But in common speech it is rarely that a city or town is referred to merely as a corporation. Towns in New England differ in their nature from trading, manufacturing or public service corporations, and even from municipal corporations elsewhere. They are created primarily for political purposes and the convenient administration of government. They possess few of the characteristics which distinguish the ordinary corporation. Bloomfield v. Charter Oak Bank, 121 U.S. 121, 129, 7 S.Ct. 865, 30 L.Ed. 923. The town was the unit of local government in Massachusetts from the earliest times. Towns have been spoken of usually by their distinctive name, which indicated their part in government as a territorial subdivision rather than the fact that they are an artificial, corporate creation. They are thus referred to several times in the Constitution and its amendments. Although the Legislature always has had under the Constitution general power to provide for the establishment and dissolution of corporations, it was thought by the people not to be authorized to erect and constitute a city form of government. Hence article 2 of the amendments to the Constitution was adopted expressly conferring this power. Hill v. Boston, 122 Mass. 344, 354, 23 Am. Rep. 332; Warren v. Charlestown, 2 Gray, 84-101. This would not have been necessary if a city was simply a corporation. Most if not all of the city charters enacted by the Legislature pursuant to this authority do not describe the city as a mere corporation, but as a body politic and corporate or a municipal corporation. The form and arrangement of our statutes show a manifest purpose not to treat cities and towns as corporations in the ordinary sense of that word. Separate titles of the Revised Laws relate to them. R. L. tit. 7, 'Of Towns and Cities,' comprehends chapters 25 to 34, both inclusive. Title 6, c. 20, relates to counties. Title 9, including chapters 36, 37 and...

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  • Donahue v. City of Newburyport
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 22, 1912
    ...211 Mass. 56198 N.E. 1081DONAHUEv.CITY OF NEWBURYPORT.Supreme Judicial Court of Massachusetts, Essex.May 22, Report from Superior Court, Essex County; Robert F. Raymond, Judge. Action by Robert Donahue, administrator, against the City of Newburyport. On report. Judgment for plaintiff. Tort ......

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