Bolster v. City of Lawrence

• Citation: 225 Mass. 387,114 N.E. 722
• Parties: BOLSTER v. CITY OF LAWRENCE.
• Decision Date: 04 January 1917
• Court: United States State Supreme Judicial Court of Massachusetts

225 Mass. 387

114 N.E. 722

BOLSTER

v.CITY OF LAWRENCE.

Supreme Judicial Court of Massachusetts, Essex.

Jan. 4, 1917.

Appeal from Superior Court, Essex County; W. F. Dans, Judge.

Separate actions by Mary A. Bolster, Alvina Balletta, and Margaret Jones, as administratrices, and John J. McCann, Peter Pinto, and Michael Thornton, as administrators, against the City of Lawrence. Judgments for defendant on demurrer to the declarations, and plaintiffs appeal. Affirmed.

W. S. Peters, H. J. Cole, F. H. Magison, and W. F. Barrett, all of Haverhill, for appellants.

D. J. Murphy, of Lawrence, for appellee.

RUGG, C. J.

The allegations in the several counts of the plaintiff's declaration, so far as now material, are in substance that the defendant city maintained and operated a bathhouse established by it on the shore of the Merrimac river, whereby the plaintiff's intestate, who had resorted to the bathhouse for the enjoyment of the facilities there afforded, while in the exercise of due care, was mortally injured by the giving way of the structure and its approaches, resulting from the negligence of the defendant and its servants. The bathhouse was maintained under R. L. c. 25, §§ 20, 21. Thereby the defendant was authorized to purchase or lease land and erect or repair a building ‘for public baths' and to ‘make open bathing places' and to ‘provide instruction in swimming’ and also to ‘establish rates for the use of such baths.’ There is no averment that the defendant made any charge for the use of the bathhouse. The argument before us proceeded upon the assumption that no charge was made, and that the bathhouse was established and maintained for the free use of the public. The case must be considered on that footing.

The general principles of law by which claims for liability in tort against cities and towns must be determined are well established.The municipality, in the absence of special statute imposing liability, is not liable, for the tortious acts of its officers and servants in connection with the gratuitous performance of strictly public functions, imposed by mandate of the Legislature or undertaken voluntarily by its permission, from which is derived no special corporate advantage, no pecuniary profit, and no enforced contribution from individuals particularly benefited by way of compensation for use or assessment for betterments. A city or town is not liable, therefore, for negligent or tortious acts in the conduct of schools (Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332), the construction of schoolhouses (Howard v. Worcester, 153 Mass. 426, 27 N. E. 11,12 L. R. A. 160, 25 Am. St. Rep. 651), the maintenance of a city hall solely for public uses (Kelley v. Boston, 186 Mass. 165, 71 N. E. 299,66 L. R. A. 429), of shade trees (Donohue v. Newburyport, 211 Mass. 561, 98 N. E. 1081, Ann. Cas. 1913B, 742), of a house of industry (Curran v. Boston, 151 Mass. 505, 24 N. E. 781,8 L. R. A. 243, 21 Am. St. Rep. 465), of a public park (Holleran v. Boston, 176 Mass. 75, 57 N. E. 220), in the printing of committee reports (Howland v. Maynard, 159 Mass. 434, 34 N. E. 515,21 L. R. A. 500, 38 Am. St. Rep. 445). Nor is it answerable for the acts of police officers (Buttrick v. Lowell, 1 Allen, 172, 79 Am. Dec. 721), highway surveyors (Dupuis v. Fall River, 223 Mass. 73, 111 N. E. 706;Smith v. Gloucester, 201 Mass. 329, 87 N. E. 626), road commissioners (McManus v. Weston, 164 Mass. 263, 41 N. E. 301,31 L. R. A. 174), members of the fire department (Hafford v. New Bedford, 16 Gray, 297;Pettingell v. Chelsea, 161 Mass. 368, 37 N. E. 380,24 L. R. A. 426;Workman v. New York, 179 U. S. 552, 580, 21 Sup. Ct. 212, 45 L. Ed. 314), assessors (Rossire v. Boston, 4 Allen, 57;Hathaway v. Everett, 205 Mass. 246, 91 N. E. 296,137 Am. St. Rep. 436), selectmen (Cushing v. Bedford, 125 Mass. 526;Pinkerton v. Randolph, 200 Mass. 24, 85 N. E. 892), boards of aldermen (Child v. Boston, 4 Allen 41, 51,81 Am. Dec. 680), the city government (Griggs v. Foote, 4 Allen, 195), licensing boards (McGinnis v. Medway, 176 Mass. 67, 57 N. E. 210), tax collectors (Alger v. Easton, 119 Mass. 77), constable and deputy collector of taxes (Dunbar v. Boston, 112 Mass. 75), overseers of the poor (New Bedford v. Taunton, 9 Allen, 207), servants in the discharge of fire works (Tindley v. Salem, 137 Mass. 171, 50 Am. Rep. 289), those in charge of celebrations, playgrounds, and public amusements (Kerr v. Brookline, 208 Mass. 190, 94 N. E. 257,34 L. R. A. [N. S.] 464;Higginson v. Treas. of Boston, 212 Mass. 583, 588, 99 N. E. 523,42 L. R. A. [N. S.] 215), boards of health (Barry v. Smith, 191 Mass. 78, 88, 91, 77 N. E. 1099,5 L. R. A. [N. S.] 1028,6 Ann. Cas. 817), other health officers (Harrington v. Worcester, 186 Mass. 594, 598, 72 N. E. 326), collectors of refuse (Johnson v. Somerville, 195 Mass. 370, 81 N. E. 268,10 L. R. A. [N. S.] 715), gatemen or drawtenders (148 Mass. 544,Hawes v. Milton, 213 Mass. 446, 100 N. E. 665), transit and subway commissioners (Mahoney v. Boston, 171 Mass. 427, 50 N. E. 939), and officers charged with enforcement of statutes as to the removal of wires and electric appliances from streets (Postal Telegraph Cable Co. v. Worcester, 202 Mass. 320, 88 N. E. 777).

On the other hand a municipality is answerable for the acts of its servants or agents in the conduct of functions voluntarily undertaken for its own profit and commercial in character, or to protect its corporate interests in its own way. Thus it is liable for the acts of agents specially selected and deputed to repair highways to the exclusion of those public officers provided by the law, on the ground that it is protecting by quasi private instrumentalities its pecuniary interest growing out of statutory liability for defects in highways. Butman v. Newton, 179 Mass. 1, 60 N. E. 401,88 Am. St. Rep. 349;Waldron v. Haverhill, 143 Mass. 582, 10 N. E. 481. It is liable on the same ground, for agencies used in lighting streets. Dickinson v. Boston, 188 Mass. 595, 75 N. E. 68,1 L. R. A. (N. S.) 664; Sullivan v. Holyoke, 135 Mass. 273. So, also, it is liable for negligence in the management of its water department (Hand v. Brookline, 126 Mass. 324;Lynch v. Springfield, 174 Mass. 430, 54 N. E. 871;Johnson v. Worcester, 172 Mass. 122, 51 N. E. 519), in the operation of its sewer system (O'Brien v. Worcester, 172 Mass. 348, 52 N. E. 385;Allen v. Boston, 159 Mass. 324, 34 N. E. 519,38 Am. St. Rep. 423), in running a ferry boat (Davies v. Boston, 190 Mass. 194, 76 N. E. 663), in the letting of a public hall for profit (Little v. Holyoke, 177 Mass. 114, 58 N. E. 170,52 L. R. A. 417;Oliver v. Worcester, 102 Mass. 489, 499,3 Am. Rep. 485), in managing a farm, partly for the support of its poor, partly for the maintenance of its highway department, and partly for the production of income (Neff v. Wellesley, 148 Mass. 487, 20 N. E. 111,2 L. R. A. 500), in the operation of a stone crusher for profit (Duggan v. Peabody, 187 Mass. 349, 73 N. E. 206;Collins v. Greenfield, 172 Mass. 78, 51 N. E. 454), and in the maintenance of electric and gas lighting plants, for the use of which rates are charged (O'Donnell v. No. Attleborough, 212 Mass. 243, 98 N. E. 1084).

The difficulty lies not in the statement of the governing principles of law, but in their application to particular facts. The underlying test is whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit. If it is, there is no liability, if it is not, there may be liability. That it may be undertaken voluntarily and not under compulsion of statute is not of consequence. Tindley v. Salem, 137 Mass. 171, 50 Am. Rep. 289.

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