Elliott v. City of Philadelphia
| Decision Date | 09 March 1874 |
| Citation | 75 Pa. 347 |
| Parties | Elliott <I>versus</I> The City of Philadelphia. |
| Court | Pennsylvania Supreme Court |
Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR and GORDON, JJ.
Error to the District Court of Philadelphia: No. 71, to January Term 1870.
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S. W. Pettit, for plaintiff in error.—If the driver is in no fault, the officers are voluntary bailees; if he is in fault, they are involuntary bailees: in either case they are liable for negligence: 2 Parsons on Contracts 96; Story on Bailments, § 44 a; 33, 33 a; Smith v. The Railroad, 7 Foster 86; Tudor v. Lewis, 3 Metc. (Ky.) 378; Hartlieb v. McLain, 8 Wright 510. The duty to keep safely was not impaired by the fact that the horse was taken whilst the owner was breaking an ordinance: Burke v. Trevit, 1 Mason 96. A master is liable for the mistakes of his servant in the exercise of a discretion: Seymour v. Greenwood, 7 Hurlst. & N. 356; Meyer v. 2d Av. R. R., 8 Bosw. 305; Croft v. Alison, 4 B. & Ald. 590; Penna. R.R. v. Vandiver, 6 Wright 365.
Where a power is conferred upon a city, the exercise of which is discretionary, there is no liability for non-performance or partial performance, but merely for neglect in the act of exercising the power: Weightman v. Washington, 1 Bl. (U. S.) 50; Adsit v. Brady, 4 Hill 630; Shepherd v. Lincoln, 17 Wend. 250; Jones v. New Haven, 34 Conn. 1; Robertson v. Chamberlain, 34 N. Y. 389; Mersey Docks v. Gibbs, Law Rep. 1 H. L. 93; Ward v. Lee, 7 Ell. & B. 426; Coe v. Wise, Law Rep. 1 Q. B. 711; Ruck v. Williams, 3 Hurlst. & N. 308; Hickok v. Plattsburg, 16 N. Y. 161; Conrad v. Ithaca, 16 N. Y. 158; Darlington v. The Mayor, 31 Id. 164; Erie City v. Schwingle, 10 Harris 384; Pittsburg v. Grier, 10 Id. 54 (64).
C. H. Gross (with whom were T. J. Barger and C. H. T. Collis, City Solicitor), for defendant in error.—The legislature makes the city the agent of the state so far as the legislation in regard to the police is concerned, and the principal not being liable for the negligent conduct of the police, the agent should not be: Fox v. The Northern Liberties, 3 W. & S. 103; Buttrick v. Lowell, 1 Allen 172; White v. Charleston, 2 Hill (S. C.) 571; Prather v. Lexington, 13 Ben. Monroe (Kentucky) 559; Martin v. The Mayor, 1 Hill 545; Levy v. New York, 1 Sandf. 465; Commissioners v. Duckett, 20 Md. 468; Lane v. Cotton, Lord Raymond 646; Schroyer v. Lynch, 8 Watts 453.
The opinion of the court was delivered, March 9th 1874, by AGNEW, C. J.
The opinion by Judge Thayer is such an ample discussion of the question in this case that it is unnecessary to do more than affirm the judgment upon it. The case is distinguishable entirely from that of The City v. Gilmartin, 21 P. F. Smith 140. It was decided upon the ground of agency, and it was therein expressly said: "Thus a mere statement of the facts discloses the relation of principal and agent in reference to the city waterworks, and not that of ordinary corporation officers performing merely municipal functions." This is plainly the distinction between the two cases, the police officers in the present case, having acted merely in their official character when arresting the plaintiff for a breach of peace. In The United States v. Hart, 1 Peters' C. C. R. 390, Judge Washington held, that driving a mail stage at a furious rate through the streets of Philadelphia, was a breach of the peace, and that, notwithstanding the Act of Congress against stopping the mails, a constable was authorized at common law, without a...
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