O'Brien v. Town of Derry

• Decision Date: 07 March 1905
• Citation: 73 N.H. 198,60 A. 843
• Parties: O'BRIEN v. TOWN OF DERRY.
• Court: New Hampshire Supreme Court

60 A. 843

73 N.H. 198

O'BRIEN

v. TOWN OF DERRY.

Supreme Court of New Hampshire. Rockingham.

March 7, 1905.

Transferred from Superior Court; Stone, Judge.

Case for negligence by Thomas O'Brien against the town of Derry. A demurrer to defendant's plea was sustained, and defendant excepted. Transferred from the superior court. Exceptions sustained.

Case for negligence. The declaration alleged that on May 22, 1903, the plaintiff was a laborer upon the highways in the defendant town, under the immediate supervision and control of one Davis; that he was injured by reason of a defective cart upon which he was riding by the direction of Davis; that it was the duty of the town to furnish him with safe appliances, and especially a safe cart, with which to do his work; and that it failed to perform its duty in this respect. The defendant filed a special plea that Davis was the highway agent of the town and an independent officer, for whose acts it was not responsible. To this plea the plaintiff demurred. The demurrer was sustained, and the defendant excepted.

Doyle & Lucier and Eastman & Hollis, for plaintiff. G. K. & B. T. Bartlett, for defendant.

WALKER, J. The demurrer raises the question whether the facts alleged in the plea constitute a valid defense to the declaration; in other words, whether the facts that Davis was the highway agent for the town, and that the plaintiff at the time of his alleged injury was working upon the highway for and under the direction of Davis, show that the relation of master and servant did not exist between the plaintiff and the town. The gist of the action is that the defendant violated its duty to the plaintiff in not providing for him a reasonably safe cart for the performance of his work as a laborer upon the highway, and that this breach of duty was the proximate cause of his injury-Davis, as the highway agent of the defendant town, "under the direction of the selectmen" (Laws 1897, p. 59, c. 67, § 1), bad "charge of the construction and repair of all highways and bridges within the town," with "authority to employ the necessary men and teams, and purchase timber, plank, and other material for the construction and repair of highways and bridges." Laws 1893, p. 25, c. 29, § 3. He was a public officer charged "with the performance of a public duty. The construction and repair of highways legally laid out are governmental acts, and their essential character as such is not changed by legislative action imposing the duty of superintending and doing the work required upon officers selected by the towns or appointed in some other way. If the selectmen of a town are required by the Legislature to superintend the repairs of the highways in the town, they act in that respect as public officers of the state, and not as the private, corporate agents of the town. Ball v. Winchester, 32 N. H. 435; Hardy v. Keene, 52 N. H. 370, 377; Eaton v. Burke, 66 N. H. 306, 310, 22 Atl. 452; Hall v. Concord, 71 N. H. 307, 52 Atl. 864, 58 L. R. A. 455.

Whatever the effect of the amendment of 1897 may be, by which the highway agent was placed "under the direction of the selectmen," it did not make the work he was authorized to do any the less a public, governmental work, or delegate to the selectmen, as the private agents of the town, all or a part of the sovereign power of the state to maintain highways. Hennessey v. New Bedford, 153 Mass. 260, 26 N. E. 999. Whatever the division of power between the highway agent and the selectmen may be under this statute, they are, with respect to the exercise of their respective highway powers, public officers, from whose acts in maintaining and repairing the highways the town derives no special benefit. Upon principle, it can make no difference whether the Legislature expressly appoints the person or persons to perform the public work, or designates certain town officers who together are to have the powers of highway construction and repair. By whomsoever done, under legislative authority, the work retains its essential public character, and does not in any event become the private, local work of the town. If when the Legislature appoints A. to do the work alone he is a public officer, other men legally associated with him in the superintendence of the work are for the same reason public officers, although they may be also the selectmen of the town and for other purposes its private agents. Prince v. Lynn, 149 Mass. 193, 21 N. E. 296.

It is not, therefore, important whether the plaintiff was in fact employed by the highway agent, or by the selectmen, or by all of them together. The ground of his action is that he was employed by the proper authority to work upon the highway, and that authority was derived from, and exercised by virtue of, the general highway statute above referred to. It is undoubtedly true that by virtue of his employment the town became bound to pay him for the labor he should perform under such employment. This result would necessarily follow from the statutory imposition of highway duties upon towns and certain designated officers, requiring the employment of laborers and the use of convenient tools and appliances. But the employment of the plaintiff did not create between him and the town the relation of master and servant, which ordinarily arises from the contract of employment. If the obligation of a master to supply his servant with reasonably safe tools and appliances for the prosecution of the work required arises by implication from the contract (Fifield v. Railroad, 42 N. H. 225, 236; Olney v. Railroad, 71 N. H. 427, 431, 52 Atl. 1097), it is necessary that there should be a contract between the parties which, reasonably construed, indicates that the parties intended to include that obligation in their agreement.

But it is an elementary principle that a valid contract presupposes the meeting of the minds of at least two competent persons who freely enter into the compact. If one of the parties is compelled to assume a contractual burden—if his freedom of mental action is in abeyance—there is no meeting of minds and no contract, as ordinarily understood. Compulsion is not equivalent to freedom. The imposition upon the town of the duty of paying the plaintiff his wages did not create a contract of employment between it and the plaintiff, as understood at common law. The Legislature created the liability of the town to pay him for his work. It was not optional with the town whether it should assume that liability or not After the plaintiff was employed by the public highway officers and performed the work required of him, the obligation of the town to pay him therefor arose by force of the statute. It was a statutory, not a contractual, obligation. There is no apparent escape from this conclusion, in the absence of any express, voluntary action of the town resulting in a contract.

Gooch v. Exeter, 70 N. H. 413, 48 Atl. 1100, was an action of assumpsit for services as a police officer. The plaintiff was appointed by a board of police commissioners established for the town of Exeter by a statute which provided that police officers so appointed should be paid for their services by the town. The defendant claimed that the statute was unconstitutional. In the course of the opinion sustaining the constitutionality of the act the court remark (page 417, 70 N. H., page 1102, 48 Atl.): "If the plaintiff had been elected by the town or appointed by the selectmen under legislative authority, probably no question would be made regarding the obligation of the town to pay for his services. The transaction would then have the appearance of an employment of the plaintiff by the town; it would have the semblance of a contract. Yet when it is considered that the seeming employment is not such in fact, but is the designation of a person to perform the duties of a public office, and that it is made by the town not on its own account, but as an agent of the state, the immateriality of the town's act upon the question of its obligation to pay for the officer's services becomes apparent. The obligation does not arise from a contract, but, like the obligation to build and repair highways, is imposed by the general court. 1 Dill. Mun. Cor. §§ 73, 74." The pay of the plaintiff per diem was fixed by the statute; but, as intimated in the opinion, if it had been left to the town to establish it, its liability would not have been any the less an imposed liability, nor would the "semblance of a contract" been any greater. See Cook v. Springfield, 184 Mass. 247, 249, 68 N. E. 201. The town and the plaintiff did not meet on an equality. Whether laborers should be employed upon the highways was a question not left to the determination of the town in its private capacity, nor was it invested with any discretion as to their payment; hence the only ground upon which its liability can be placed is that it was imposed by the Legislature. It was based upon a public duty which it did not seek to perform, from which it derives no special benefit, and against which its dissent would be unavailing. Under such circumstances of compulsion, it is not perceived how it could be held that the plaintiff's employment and the statutory obligation of the town to pay him rendered the town a master with reference to him, and subjected it to the ordinary incidents of that relation, as a matter of contract. If it did not willingly and voluntarily agree to pay him, it did not willingly and voluntarily agree to furnish him with reasonably safe appliances. Atkins v. Randolph, 31 Vt. 226, 236, 243. "No one would pretend that a town would be liable for damages occasioned by the negligence or want of care of one of its inhabitants while engaged in working out the amount of his highway tax by making repairs on the roads. And yet we cannot see why such liability would not exist if the surveyor of highways, or the persons employed by him, can render the town chargeable for acts of carelessness...