Baumgardner v. City of Boston

• Decision Date: 24 October 1939
• Citation: 304 Mass. 100,23 N.E.2d 121
• Parties: JOHN BAUMGARDNER v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

304 Mass. 100

23 N.E.2d 121

JOHN BAUMGARDNER v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

October 24, 1939

November 3, 1937.

Present: FIELD, C.

J., LUMMUS, QUA & DOLAN, JJ.

Municipal Corporations, Liability for tort. Actionable Tort.

The mere fact, that the operator of a motor truck under the direction of an inspector of the sanitary division of a city's public works department was a recipient of relief who had been directed by the overseers of public welfare to work in the sanitary division, did not relieve the city from liability for negligent operation by him.

A city was liable for personal injuries caused by negligence committed by its servant engaged in collecting refuse from a mercantile establishment where it appeared that its ordinance obliged it to collect domestic refuse without charge and permitted it to collect mercantile and industrial refuse upon payment of a rate established by its commissioner of public works, that collections of mercantile and industrial refuse were made by the city in parts of the city only, that private contractors also made such collections at a less rate than that of the city, and that the city rate while substantial, was less than cost.

TORT. Writ in the Municipal Court of the City of Boston dated February 17 1936.

There was a finding for the plaintiff by Gillen, J., in the sum of $5,000.

H. P. Moulton, (R.

H. Field & W.

A. Parks with him,) for the plaintiff.

E. K. Nash, Assistant Corporation Counsel, for the defendant.

DOLAN, J. This is an action of tort to recover compensation for personal injuries sustained by the plaintiff when struck by a motor truck, owned by the defendant city and in service in the sanitary division of its public works department. The judge found for the plaintiff, and the case now comes before us on the plaintiff's appeal from the order of the Appellate Division that judgment be entered for the defendant.

There was evidence that the operator of the vehicle was negligent and that the plaintiff was in the exercise of due care at the time of the accident. The sole issue raised by the report is that of the responsibility of the defendant for the negligence of the operator of the truck.

The operator of the vehicle (hereinafter referred to as the operator), who was a recipient of relief or aid from the department of public welfare of the defendant, was directed by the overseers of the public welfare of the defendant to work in the sanitary division of its public works department. At the time of the accident he was operating the motor truck at the direction of an inspector of the sanitary division, and, under the latter's instructions, was proceeding from the city yard on Albany Street to premises occupied by "Rhodes Bros Company on Massachusetts Avenue by the shortest possible route to collect refuse" from their store. The accident occurred on West Newton Street near Huntington Avenue, and at the time of the accident the truck was empty. Shortly after the accident the truck proceeded to the store of "Rhodes Bros. Company" and there collected several barrels of mercantile or store refuse and took them "from there on the truck."

G.L. (Ter. Ed.) c. 40, Section 4, (made applicable to cities by Section 1,) provides in part as follows: "A town may make contracts for the exercise of its corporate powers and for the following purposes: For the disposal of its garbage, refuse and offal by contract for a term of years. Contracts for such disposal may be made by the selectmen, board of health or other officers having charge thereof."

Pertinent provisions of c. 27, Section 1, of the Revised Ordinances (1925) of the City of Boston in effect at the time of the accident were that "The department of public works shall be under the charge of the commissioner of public works, who . . . shall remove and dispose of the following classes of refuse from dwelling houses and from housekeeping apartments or tenements, when it is placed in yards or areas so as to be easily removed, free of charge to the producers of such refuse and to the owners and occupants of such dwelling houses, apartments and tenements, viz., swill and kitchen garbage, dust and sweepings, ashes from fires used wholly or principally for heating or cooking, waste paper, cardboard, string, packing material sticks, rags, waste leather and rubber, boxes, barrels, broken furniture and other similar light or combustible refuse; tins, bottles, jars, broken glass, broken crockery, bones, shells, waste or broken metals and all other similar heavy or incombustible refuse. But the department shall not be required to take any such refuse from hotels, apartment hotels, restaurants, shops, stores, or from any other building whatever except those first hereinbefore enumerated and except buildings occupied by the city. The department shall not so take refuse of manufacturing or mercantile business, or dead animals, manure, plaster, building materials, earth or stones except from premises occupied by the city, but the department may take and dispose of any refuse upon payment by the producer thereof to the city of such compensation as the commissioner shall from time to time prescribe. The commissioner shall, on the fifteenth day of each month, send to the city auditor detailed bills of all material, tools and machinery furnished by either of the divisions of the department to any other division or for any special work."

In pursuance of the terms of this ordinance the commissioner "had fixed a price of eleven cents per barrel as the compensation for taking and disposing of the refuse of a manufacturing or mercantile business. The defendant . . . [sold] tickets at eleven cents each, one of which . . . [was] surrendered in payment for the collection of each barrel of such refuse. For each barrel of refuse taken from Rhodes Bros. Company on the day of the accident, one of these tickets was given to a city inspector by an employee of Rhodes Bros. Company."

There was evidence that the defendant received, during 1935, the total sum of $22,253.66 as compensation for the collection of manufacturing and mercantile refuse, that this figure appealed as a receipt in the city auditor's report for that year, and that, for the year of 1935, the entire cost for the operation of the sanitary division was $1,238,607.28.

There was further evidence that it cost the city an average of twenty-three cents per barrel for the collection of all refuse collected by it (excluding collections done by others contracting with the city) including both domestic refuse for which it received no pay, and commercial refuse for which it received eleven cents per barrel; that the average is determined by dividing the total number of barrels collected into the entire expense of the sanitary division, including salaries and overhead for the year 1935. The city is divided into ten sanitary districts and in five of these districts the defendant contracts with others to collect refuse, the average expense per barrel to the defendant for collection by such contractors in such districts being nine and three quarter cents.

There was also evidence that in the other five districts, one of these being where the accident occurred, the collection and disposal of refuse is done by city employees and city trucks, and that the cost to the city for removing such waste in these five districts, both commercial and domestic, for the year 1935 was $342,834.40. Rhodes Bros. Company is in a semiresidential district and in one of these five districts. There was a great volume of collection of commercial waste by private contractors in these districts where the city itself collects, and the price charged by private contractors for such collection was less than the price of eleven cents charged by the city.

At the close of the evidence the defendant presented seven "requests for rulings." The dispositions of only the third, fourth, sixth and seventh requests have been argued before us. Those requests were as follows: "3. That a welfare worker, receiving aid from the city of Boston, is not an employee of the city. 4. That the defendant cannot be bound by the torts committed by a welfare worker." "6. That receiving money for expenses does not constitute a profit. 7. That as a matter of law the defendant is not liable for the accident in question." In response to the third request the judge ruled thus: "Allowed; in the sense that a recipient of aid from the city of Boston is not on the regular pay roll of the department of the city to which he is assigned to work. But I find as a fact that the operator of the defendant's truck, notwithstanding the fact he was receiving aid from the city was the agent or servant of the defendant and acting within the scope of his employment at the time of the accident." The judge denied the fourth request. As to the sixth request he ruled as follows: "Allowed; but I rule that where a city or town is engaged in a commercial venture where liability attaches for the torts of its agents, whether or not the city or town is making the business profitable is immaterial." The seventh request was denied; its denial was accompanied by findings of fact which have already been recited, and by further findings that "the truck of the defendant was being used at the time of the accident in the conduct of a function voluntarily undertaken [by the defendant] for its own profit and commercial in character," and "That the collection and disposal of refuse of a mercantile business is not an act required to be performed by the defendant in its public capacity for the common good."

The only...