Burroughs v. Commonwealth

• Decision Date: 16 May 1916
• Citation: 224 Mass. 28,112 N.E. 491
• Parties: BURROUGHS v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 28

112 N.E. 491

BURROUGHS

v.COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

May 16, 1916.

Appeal from Superior Court, Suffolk County; William Cushing Wait, Judge.

Action by George Burroughs against the Commonwealth of Massachusetts. From a judgment for defendant, sustaining a demurrer to the petition, plaintiff appeals. Affirmed.

Richard W. Hale and John M. Maguire, both of Boston, for appellant.

Henry C. Attwill, Atty. Gen., Arthur E. Seagrave, Asst. Atty. Gen., and Chas. W. Mulcahy, of Boston, for the Commonwealth.

RUGG, C. J.

This is a petition against the commonwealth, brought under R. L. c. 201. It alleges in substance that the plaintiff sustained damages to his property by fire set and negligently permitted to escape from their control by men employed by the state forester and engaged under his direction in cutting cord wood and clearing brush under the assumed authority of Resolves of 1915, for the private benefit of one Streeter, the owner of land adjacent to the plaintiff's land, who was to pay for the work done at so much per cord of wood cut. In substance the petition sets out an ordinary cause of action, sounding in negligence of servants in the course of the performance of their duties for their master. The commonwealth demurred on the general ground that no cause of action is set forth in the petition, for the redress of which jurisdiction is given by the statute.

It is familiar law that the sovereignty can be impleaded in its own courts only in the manner, to the extent and for the causes expressed in the statute granting consent thereto. McArthur Bros. Co. v. Com., 197 Mass. 137, 83 N. E. 334.

[2] It has been held that while the terms of the statute now embodied in R. L. c. 201, are ‘full and comprehensive, it is not to be interpreted as imposing any new obligation upon the commonwealth, or as creating a new class of claims for which a sovereignty never has been held responsible, but * * * ‘to provide a convenient tribunal for the determination of claims of the character which civilized governments have always recognized, although the satisfaction of them has been usually sought by direct appeal to the sovereign, or, in our system of government, through the Legislature.’' Nash v. Com., 174 Mass. 335, 338, 54 N. E. 865, 866. In view of this decision, the statute cannot be stretched to include damages for an ordinary tort committed by an officer or employee of the commonwealth in the performance of duties prescribed by law. It expressly was adjudged in Murdock Parlor Grate Co. v. Com., 152 Mass. 28, 24 N. E. 854,8 L. R. A. 399, that demands founded on the neglect or tort of ministerial officers engaged as servants in the performance of duties which the state as a sovereign has undertaken to perform, have never been recognized as the foundation of obligations. So far as the petition sets forth work of a public nature, it is concluded adversely to the plaintiff by these decisions.

Liability is urged on the ground that the work here alleged is not of a sovereign or public nature in any proper sense, but is in the nature of private business undertaken by the commonwealth as it might be by any private contractor. It is plain, however, that there is no law authorizing the state forester to engage in the general business of cutting cord wood or clearing brush for private owners. Resolves of 1915, c. 2, directed the state forester ‘to provide employment for needy persons deemed by him to be worthy thereof. * * * The moneys authorized to be spent under the provisions of this resolve shall be spent upon the improvement and protection of forests and in any other public work which may in the opinion of the state forester be proper.’ Manifestly this language does not authorize the prosecution of work upon private lands for the benefit of private owners, but only upon that...