Aldrich v. Tripp

• Decision Date: 22 June 1875
• Citation: 11 R.I. 141
• Parties: ANSON W. ALDRICH v. BENJAMIN TRIPP, City Treasurer of the City of Providence.
• Court: Rhode Island Supreme Court

11 R.I. 141

ANSON W. ALDRICH v. BENJAMIN TRIPP, City Treasurer of the City of Providence.

Supreme Court of Rhode Island.

June 22, 1875

A statute of the state, enabling a city to introduce pure water, empowered the city to elect water commissioners for a fixed term, and for such subsequent terms as the city might determine, to prescribe the duties and compensation of the commissioners, and to regulate the mode and causes of their removal from office. The city owned the water works, received rents for water, and controlled the use and distribution of the water. In an action against the city for damages resulting from an unsafe highway, the damage being caused by a stream of water thrown from a city hydrant across the highway by the employees of the water commissioners, -

Held, that the water commissioners and their employees were the servants of the city, and that the city was responsible for their acts.

A city or town charged with a public duty in consideration of valuable privileges is liable to an individual who suffers special injury from a neglect of the duty; and a city or town which derives an emolument from the exercise of powers conferred upon it is liable for the negligent or unskilful exercise of these powers by its agents, or for the neglect of a duty which is imposed by or results from the exercise of them.

In such cases the officers engaged in the execution of the powers are to be regarded as the agents of such city or town.

PLAINTIFF'S petition for a new trial.

The facts are stated in the opinion of the Court.

George H. Browne & Dexter B. Potter, for plaintiff.

1. The city of Providence is a corporation, deriving all its powers as such from an act of the General Assembly. Act of October A. D. 1831, and acts in amendment thereof.

2. The water commissioners of said city, appointed in accord dance with an act of the legislature passed at the January session 1866, and an ordinance of said city passed September 20, 1869, are (together with their agents, clerks, and servants) the agents and servants of said city, for whose acts of negligence, acting within the scope of their authority in rendering the highway unsafe in this case, the city is liable. Chapter 640 of the Public Laws; City Ordinance, passed September 20, 1869; Henly v. The Mayor of Lyme, 5 Bing. 91; Mersey Docks v. Gibbs, 11 H. L. 686; Scott v. Mayor of Manchester, 2 H. &amp N. 204, 205; Stackhouse v. City of Lafayette, 26 Ind. 17; Rochester White Lead Co. v. The City of Rochester, 3 N.Y. 463; Lloyd v. The Mayor, & c. of the City of New York, 5 N.Y. 369; Furze v. The Mayor, & c. of the City of New York, 3 Hill N.Y. 612; Pittsburg v. Grier, 23 Pa. St. 54; Child v. Boston, 4 Allen, 41; Thayer v. Boston, 19 Pick. 511; Oliver v. Worcester, 102 Mass. 489; Bailey v. The Mayor, & c. of New York, 3 Hill N.Y. 531, and cases cited; Cooley Constitutional Limitations, *249.

Charles H. Parkhurst, for defendant.

The question involved in this case is this: Were the water commissioners, in the discharge of the duties imposed upon them - Pub. Laws, cap. 640, March 8, 1866, and the Ordinance of the City of Providence, approved September 20, 1869 - public officers charged with the performance of certain public duties, or were they the agents of the city of Providence, so that the city is responsible for an injury arising from the manner in which they have performed their duties?

The claim of the defendant is that they were public officers, and in no sense the agents of the city for whose acts the city is responsible. Hafford v. New Bedford, 16 Gray, 297; Walcott v. Swampscott, 1 Allen, 101; Buttrick v. Lowell, 1 Allen, 172; Barney v. Lowell, 98 Mass. 570; Fisher v. Boston, 104 Mass. 87; Wheeler v. Cincinnati, 19 Ohio St. 19; Weightman v. Washington, 1 Black, 39-49; Public Laws of Rhode Island, cap. 640, March 8, 1866; cap. 1003, May 31, 1872; cap. 334, May 30, 1873; City Ordinance, approved September 20, 1869.

DURFEE C. J.

This was an action to recover damages of the city of Providence for injuries resulting from the unsafeness of one of the streets of the city. The street was rendered unsafe by a stream of water thrown across it from a hydrant of the city water works. The plaintiff's horse, being driven in the street, took fright at the water, ran away, and received injuries from which it died. On the trial to the jury the plaintiff claimed that the water commissioners or their employees were at fault. He also claimed that they were agents and servants of the city, and that consequently the city would be liable without further notice if the street was rendered unsafe by their acts. He asked the court so to instruct the jury. The court instructed the jury that the city would be liable if the street was rendered unsafe by its agents or servants, but refused to instruct them that the water commissioners were the agents and servants of the city. On the contrary, the court instructed the jury that the water commissioners were public officers, elected and paid by the city, but deriving their authority from an act of the legislature, and after their election not under the city's control. The jury returned a verdict for the city. The plaintiff claims the instruction was erroneous, and asks for a new trial on that account.

It is well settled that a city or town is not liable for the negligences and tortious acts of a public officer, merely because such city or town has appointed him to office. Thus, it has been held that a policeman is a public officer, and that the city appointing him is not liable for an assault and battery committed by him in an attempt to enforce an ordinance of the city. Buttrick v. City of Lowell, 1 Allen, 172. So it has been held that a surveyor of highways is a public officer, and that the town appointing him is not liable for injuries resulting from the carelessness of a laborer in his employ. Walcott v. Swampscott, 1 Allen, 101; Barney v. Lowell, 98 Mass. 570. And so, also, it has been held that the members of a fire department are public officers, and that the city appointing and paying them is not responsible for their negligences. Hafford v. New Bedford, 16 Gray, 297. And in such a case, it is held that the city is not liable, even though the department was established and is regulated under a special statute which by its terms was not to go into effect until accepted by the city council. " " However appointed or elected," say the court, " such persons are public officers, who perform duties imposed by law for the benefit of all the citizens, the performance of which the city has no control over and de rives no benefit from in its corporate capacity." So where power is given to a city to organize a fire department, the city is not responsible to an individual whose property has been lost by fire in consequence of an inefficient exercise of the power. The power is held to be in the nature of a delegated quasi sovereignty which excludes responsibility to individuals for neglect or nonfeasance. Wheeler v. Cincinnati, 19 Ohio St. 19.

These cases are cases in which a city or town was sought to be charged for the negligence or misfeasance of officers recognized by the court as acting for the public, or for neglecting to perform a duty imposed upon it for the benefit of the public, and for performing which it got no privilege or emolument in its corporate capacity. The plaintiff claims that the case at bar is distinguishable from those cases, and has referred to cases which he contends show that the city of Providence is liable to indemnify him. We will briefly review the cases referred to by him.

In Henly v. The Mayor of Lyme, 5 Bing. 91, and also on appeal to the House of Lords, 2 C. & F. 331, it was held...