Bowden v. Derby

• Decision Date: 16 June 1903
• Citation: 55 A. 417,97 Me. 536
• Parties: BOWDEN v. DERBY.
• Court: Maine Supreme Court

55 A. 417

97 Me. 536

BOWDEN

v. DERBY.

Supreme Judicial Court of Maine.

June 16, 1903.

(Official.)

Exceptions from Supreme Judicial Court, Knox County.

Action on the case by Herbert Bowden against Samuel Derby for personal injuries.

At the return term, defendant filed a general demurrer to the declaration.

The presiding justice, without argument, in order that the law of the case might be first settled, sustained the demurrer. To this ruling plaintiff alleged exceptions. Exceptions sustained.

Argued before WISWELL, C. J., and EMERY, STROUT, POWERS, PEABODY, and SPEAR, JJ.

C. E. & A. S. Littlefield, for plaintiff.

D. N. Mortland, for defendant.

A street commissioner or superintendent of streets is a public officer. Such obligations as rest, to an extent, upon employers to their employes, do not apply to public officers in the discbarge of public duties. Prince v. City of Lynn, 149 Mass. 193, 21 N. E. 296.

The plaintiff was not in the employ of defendant, but in the employ of the city. Unless defendant injured plaintiff by some malfeasance or misfeasance individually and aside from the discharge of his duties as a public officer, he cannot be held liable. The doctrine of respondeat superior does not apply here.

The declaration charges defendant simply with a nonfeasance in failing to do what the declaration states to be his duty as street commissioner or highway surveyor, but which is not required by statute law. Defendant is charged with failing to do what the law does not require him to do.

POWERS, J. Exceptions to a pro forma ruling of the presiding justice sustaining a demurrer to the plaintiff's declaration.

The declaration alleges "that on the 6th day of August, A. D. 1900, the defendant was, and for a long time prior thereto had been, the duly elected and qualified street or road commissioner of the city of Rockland, and received from said city for the performance of his duties as such a salary of eight hundred dollars per year; and having prior to said date, in performance of his said duties as road commissioner, determined that repairs were necessary upon a certain street in said city, known as 'Maverick Street,' and having determined to build a retaining wall in repairing said street, said defendant undertook to construct and was constructing said retaining wall for the purpose of supporting the southerly side of said street.

"That said defendant selected and employed the workmen engaged thereon, had the power to remove and discharge them, and directed what work should be done, and the way and manner in which it should be done, and procured necessary tools and machinery to be used in prosecuting said work, and had full charge and power over and control thereof, and of all details entering into said work.

"That the plaintiff was employed as a laborer on said work, and during all the time he worked upon said wall was under the direction and control of said defendant, who was doing said work in the discharge of his duties as road commissioner.

"That in constructing said wall certain heavy rock and large stone had to be moved, bandied, and placed therein, for the handling of which said commissioner had procured, erected, and equipped a derrick upon the bank far above the place where this plaintiff was at work, and nearly on a level with said street.

"That the plaintiff knew nothing as to the sufficiency of said derrick or of its equipment, and had never been near to or examined the same, but had been instructed and directed by the said defendant to work at the base of said wall, and far below the level on which said derrick was erected and operated.

"That it was then and there the duty of said defendant to the men employed by him and under his control in doing said work, he having full and immediate charge, control, and direction of said work, to provide a suitable and safe derrick and equipment, erect and set the same up in a suitable and safe manner, and keep and maintain it in a safe and suitable condition, and to employ only suitable and careful persons in erecting and maintaining said derrick and in the prosecution of said work; and it was the duty of said defendant to this plaintiff, having undertaken to provide a derrick for use in doing said work, to provide only such derrick as was safe and suitable for the purpose, and such as was, when prepared for use upon said work, in a safe and suitable condition, and such as would not endanger the employes working thereon.

"That said defendant, unmindful of his duty in this behalf, did not provide, as plaintiff avers, a suitable and safe derrick, nor did he cause it to be set up in a suitable and safe manner, and did not cause it to be kept and maintained in a safe and suitable condition, and did not employ suitable and careful persons in erecting and maintaining said derrick, and in the prosecution of said work.

"That upon the 6th day of August, A. D. 1900, the plaintiff, relying upon the performance by the defendant of his duty in this behalf, and being himself then and there in the exercise of due care and diligence, and without any knowledge or means of knowledge of the defective, unsuitable, and unsafe condition of said derrick, was at work near the base of said wall when the boom of said derrick, by reason of the defective, unsuitable, and unsafe condition thereof, and by reason of its being an unsuitable appliance for the work there being done, and the negligent and unsafe manner in which it had been set up for use, all of which was, or by the exercise of reasonable care and skill might have been, known to said defendant, and the failure of said defendant to employ suitable and careful persons to erect, maintain, and operate said derrick, all of which was the result of the failure of said defendant to perform his duty aforesaid, suddenly fell a great distance, striking" and injuring the plaintiff.

There can be no negligence where there is no duty. Does this declaration charge the defendant with a failure to perform any duty which the facts therein averred show that he owed to the plaintiff?

While the defendant was a public officer, the work in which h...