Bartlett v. Town of Clarksburg

• Decision Date: 30 November 1898
• Citation: 31 S.E. 918,45 W.Va. 393
• Parties: BARTLETT v. TOWN OF CLARKSBURG.
• Court: West Virginia Supreme Court

31 S.E. 918

45 W.Va. 393

BARTLETT v. TOWN OF CLARKSBURG.

Supreme Court of Appeals of West Virginia.

November 30, 1898

Submitted June 6, 1898

Syllabus by the Court.

1. An incorporated town is not liable for personal injuries occasioned by the firing of squibs, rockets, fireworks, and firearms on the streets by a crowd of citizens, although such acts be done with the knowledge and consent of the mayor council, police, and other officers of such corporation.

2. As to the powers and functions of an incorporated town of a public governmental character, it is not liable for damages caused by the wrongful acts or negligence of its officers or agents therein.

Error to circuit court, Harrison county; John Marshall Hagans Judge.

Action by R. B. Bartlett against the town of Clarksburg. From a judgment sustaining a demurrer, plaintiff brings error. Affirmed.

W Scott, for plaintiff in error.

John Bassel and M. M. Thompson, for defendant in error.

McWHORTER J.

R. B Bartlett brought his action on the case in the circuit court of Harrison county, to recover damages against the town of Clarksburg for personal injuries sustained by plaintiff by reason of the discharge by private persons of firearms squibs, rockets, and fireworks at a narrow place in one of the streets of said town, on the ground that the said fireworks were discharged by the consent and written permission of the mayor, and with the knowledge and consent of the council and police and other officers of said town, and that the said discharge of firearms, fireworks, etc., was of such a nature as to be a public nuisance, whereby the team of horses of plaintiff attached to his buggy became frightened and unmanageable, and beyond the control of plaintiff, and ran away, throwing plaintiff from his buggy seat, and badly injuring him, for which injuries plaintiff alleges said town is liable to him for damages. The declaration contains two counts. Defendant demurred to the declaration and each count, which being argued and considered, the court sustained said demurrers; and, plaintiff not desiring to amend his declaration, the same was dismissed, and judgment rendered in favor of defendant for costs. No ground of demurrer is contended for, except that the town is not liable, and that an action cannot be maintained against the town for the wrong complained of. The appellant cites Speir v. City of Brooklyn, 139 N.Y. 6, 34 N.E. 727, which is, as he claims, on all fours with the case at bar, where it is held that "a city is liable for injury to property by an explosion of fireworks constituting a dangerous public nuisance, when the display was made under a permit given by the mayor of the city acting under authority of a city ordinance." In the case under consideration, it is not alleged in the declaration that the written permit was granted by the mayor acting by virtue or under authority of an ordinance of the town. This is about the only particular in which the two cases differ. In Speir v. City of Brooklyn the judge says: "It is the settled doctrine of the courts that a municipality is not bound merely by the assent of its executive officers to wrongful acts of third persons; nor could the mayor bind the city by a permit for the granting of which he has no color of authority from the common council, and which was not within the general scope of his authority." The case of Speir v. City of Brooklyn is supported by some other authorities; and I confess I am largely in sympathy with the decision in that case, and agree with Judge Okey as to the nuisance in the case of Robinson v. Greenville, 42 Ohio St. 630, where he says: "That firing of cannon in a public street of a municipal corporation, except in case of imperative and urgent necessity, is an intolerable nuisance, and that all persons engaged in such unlawful act are personally liable for all damages caused thereby, are propositions concerning which there is no room for difference of opinion. But a very different question is presented when it is attempted to fasten liability for such injuries on a municipal corporation."

In the case at bar the acts complained of are equally as great a nuisance as the firing of cannon, as stated in above case. Appellee contends that "the law in this state has been settled in at least two cases upon all fours with this case," viz. Mendel v. City of Wheeling, 28 W.Va. 233, and Brown's Adm'r v. Town of Guyandotte, 34 W.Va. 299, 12 S.E. 707. Cooley on Torts (pages 738, 739) says: "Municipal corporations are to be considered--First, as parts of the governmental machinery of the state, legislating for their corporations, and planning and providing for the customary local conveniences of their people; second, as corporate bodies, through proper agencies putting into execution their plans, and discharging such duties as they have imposed upon themselves, or as the state has imposed upon them; and, third, as artificial persons owning and managing property. In the last capacity they are chargeable with all the duties and obligations of other owners of property, and must respond for creating or suffering nuisances, under the same rules which govern the responsibility of natural persons. *** For taking or neglecting to take strictly governmental action, municipal corporations are under no responsibility whatever, except the political...