Buckalew v. Bd. of Chosen Freeholders of Middlesex County

• Decision Date: 17 June 1918
• Citation: 104 A. 308
• Parties: BUCKALEW v. BOARD OF CHOSEN FREEHOLDERS OF MIDDLESEX COUNTY.
• Court: New Jersey Supreme Court

104 A. 308

BUCKALEW

v. BOARD OF CHOSEN FREEHOLDERS OF MIDDLESEX COUNTY.

Court of Errors and Appeals of New Jersey.

June 17, 1918.

(Syllabus by the Court.)

Action by John P. Buckalew against the board of Chosen Freeholders of Middlesex County. From a judgment for defendant, plaintiff appeals. Affirmed.

Edmund Hayes, of Atlantic City, and Russell E. Watson, of New Brunswick, for appellant. Frederick F. Richardson, of New Brunswick, for appellee.

WALKER, C. Plaintiff was injured on the night of February 1, 1915, as the result of an accident caused by an automobile, which he was driving, running into a hole in the road known as the Woodbridge and New Brunswick turnpike in Middlesex county, a county road.

The director of the board of chosen freeholders of Middlesex had been notified about a month before the accident of the condition of the highway at the point where it happened, and had received three notices of such condition during that month. Each rain caused a washout, and it was the practice of the board of freeholders to repair the holes thus made by filling them up with sand, which would be washed out by the next storm. The board of freeholders had been requested by a person living in the vicinity to erect a retaining wall to prevent these washouts. After the accident to the plaintiff, the highway, at the point of the accident, was cemented, after which the road remained firm, and there were no further washouts.

At the conclusion of plaintiff's case, the court directed a nonsuit, to which plaintiff excepted. The contention of the plaintiff is that the conduct of the board of freeholders in repairing this road in the manner in which it did, so that a washout occurred with each successive rain storm, and with knowledge that such washouts would occur, amounted to active wrongdoing. Unless the facts in the case at bar bring it within the authorities which hold municipal corporations liable for damages to those suffering injury from the active wrongdoing of their agents, the plaintiff cannot prevail, and the nonsuit was right.

In Livermore v. Board of Freeholders of Camden, 31 N. J. Law, 507, Chief Justice Beasley, speaking for this court, said at page 508:

"That an action will not lie in behalf of an individual who has sustained special damage by reason of the neglect of a public corporation to perform a public duty I consider the set-tied law of this state. This was the doctrine approved of by the Supreme Court, after much research and a careful consideration of the authorities, in the case of Strader v. Board of Freeholders of Sussex, 3 Harr. 108, and the same principle was reaffirmed in the case of Cooley v. Freeholders of Essex, 3 Dutcher [27 N. J. Law] 415. These decisions, in my judgment, rest upon the solid foundations of ancient precedent and public policy."

This doctrine has been repeatedly reaffirmed.

In Hart v. Freeholders of Union, 57 N. J. Law, 90, 29 Atl. 490, Mr. Justice Magie, afterwards Chief Justice find Chancellor, speaking for the Supreme Court, remarked that it has been uniformly held by our courts that in the absence of a statutory provision a municipal corporation charged with the performance of a public duty is not liable to an individual for neglect to perform it or negligence in the performance of such duty, whereby a public wrong has been done for which indictment will lie, although such individual has suffered special damage, and also said that Mir. Justice Garrison had collected all the cases in Waters v. Newark, 56 N. J. Law, 361, 28 Atl. 717, in which it was held:

"The neglect of a municipal corporation to perform, or its negligence in the performance of, a public duty imposed on it by law, is a public wrong, to be remedied by indictment, and cannot constitute the basis of a civil action by an individual who has suffered particular damage by reason of such neglect. In such a case the circumstance that' an individual specially injured gave notice to the municipal authorities is of no avail, if the special injury was, in fact, part of an indictable offense.'

And Mr. Justice Magie observed in Hart v. Freeholders, 57 N. J. Law, at page 92, 29 Atl. 490:

"The exemption of municipal corporations from liability to such actions has been put by our courts on the ground of ancient precedent and public policy. Livermore v. Freeholders, 5 Dutcher [29 N. J. Law] 245; s. c, 2 Vroom [31 N. J....