Com. to Use of Orris v. Roberts

• Decision Date: 02 May 1958
• Citation: 71 A.L.R.2d 1124,392 Pa. 572,141 A.2d 393
• Parties: , 71 A.L.R.2d 1124 COMMONWEALTH of Pennsylvania, at the suggestion and to the Use of Pete ORRIS v. David B. ROBERTS and Continental Casualty Company, a corporation, Appellants. Appeal of David B. ROBERTS.
• Court: Pennsylvania Supreme Court

Page 393

141 A.2d 393

392 Pa. 572, 71 A.L.R.2d 1124

COMMONWEALTH of Pennsylvania, at the suggestion and to the Use of Pete ORRIS

v.

David B. ROBERTS and Continental Casualty Company, a corporation, Appellants Appeal of David B. ROBERTS.

Supreme Court of Pennsylvania.

May 2, 1958.

Rehearing Denied May 29, 1958.

William H. Eckert, Roderick G. Norris, Smith, Buchanan, Ingersoll, Rodewald & Eckert, Pittsburgh, Ralph H. Smith, Jr., Pittsburgh, J. M. McCandless, Pittsburgh, for appellant.

Julius J. Lorenzi, Pittsburgh, for appellees.

Before CHARLES ALVIN JONES, C. J., and BELL, CHIDSEY, MUSMANNO, ARNOLD, BENJAMIN R. JONES and COHEN, JJ.

CHARLES ALVIN JONES, Chief Justice.

This action in assumpsit was instituted in the name of the Commonwealth to the use of Pete Orris against David B. Roberts and the Continental Casualty Company, as surety on Roberts' fidelity bond as prothonotary of Allegheny County, to recover damages suffered by the use-plaintiff through the negligence of a clerk in the prothonotary's office.

The defendants filed preliminary objections to the complaint setting forth, in effect, that the doctrine of respondeat superior is not applicable to Roberts in his capacity as prothonotary and that, under the facts of this case, there is no liability on him and the defendant surety under his official bond. The court sustained the preliminary objections and entered judgment for the defendants. The plaintiff appealed to the Superior Court which reversed and entered judgment for the plaintiff on the ground that he had a cause of action against Roberts on the principle of respondeat superior and that, consequently, the Casualty Company was also liable under the terms of its surety bond. Because of the general importance of the question involved, we granted an allocatur.

The facts are not in dispute. Pete Orris, the use-plaintiff, received from Edith M. Whitaker her judgment note for $800. Orris' attorney delivered the note to the cashier (receiving clerk) in the office of the prothonotary of Allegheny County for the purpose of having the note entered of record as a judgment. The cashier, in regular course, handed the note to the clerk in the prothonotary's office whose duty it was to index judgments. The clerk is an employee of the County of Allegheny allocated to the prothonotary's office. Under the 'Russell Index System' which is used in the prothonotary's office for the indexing of judgments, Orris' judgment aghainst Whitaker should have been indexed under the key letters 'TR'. Instead, it was improperly indexed under the key letter 'T' alone. The complaint does not aver that the prothonotary ordered or directed the manner of indexing the note or had any knowledge of it. Had the judgment been properly indexed, it would have been a lien on property in Allegheny County which Miss Whitaker, the debtor, owned at the time of the filing of the note for entry but which she subsequently sold and conveyed to a third person for a consideration of $11,000 before the error in the indexing of Orris' judgment was detected and corrected. As a consequence, Orris has not been able to collect on his judgment against Whitaker.

The Superior Court based its action on the conclusion that 'the exercise of control in the assignment of duties, and the supervision of the work amongst subordinates renders the prothonotary liable for the negligence of his employees in the performance of their duties even under the theory of 'respondent superior" and held that, since 'the prothonotary is liable for the default of his clerk in the instant proceeding, it follows that the surety on his bond is also liable.' The Superior Court's decision is in error in both particulars.

The rule in Pennsylvania, as well as in other jurisdictions, is that a public officer is not liable for the negligence of his official subordinates unless he commanded the negligent act to be done. This principle and its rationale were graphically set forth in Boyd v. Insurance Patrol of Philadelphia, 113 Pa. 269, 278, 6 A. 536, 538, where this court said: 'It is true, also, as a general rule, that a public officer is not liable for the negligence of his official subordinates, unless he command the negligent act to be done. Schroyer v. Lynch, 8 Watts, 453. The rule is founded in considerations of public policy, (Sawyer v. Corse, 17 Grat. [Va.] 230) has been long recognized, and is one of general application. 'The distinction generally turns upon the question whether the persons employed are his servants, employed voluntarily or privately, paid by him, and responsible to him, or whether they are his official subordinates, nominated perhaps by him, but officers of the government; in other words, whether the situation of the inferior is that of a public officer or a private servant.' In the former case, the offical superior is not liable for the inferior's acts; in the latter, he is. Amer. Lead. Cas. 641. A subordinate officer, when he is an independent officer, must stand or fall by himself; and to him, unless otherwise provided by statute, the maxim respondeat superior does not apply. Whart.Neg. 289.'

In Schroyer v. Lynch, 8 Watts 453, 458, cited in the Boyd case, supra, the plaintiff sued the postmaster of Pittsburgh for failure to forward to the plaintiff a letter containing bank notes. The negligent acts alleged were performed by the postmaster's clerks or assistants who were appointed by him but paid by the United States Government. This court upheld the trial judge's charge that the defendant was liable only for his own personal misconduct or neglect and not for that of his subordinates. Chief Justice Gibson spoke as follows: 'That the privity which springs from appointment to office constitutes the relation of master and servant betwixt the immediate parties, is a principle on which no government has been, or can be, constructed; the man is the servant of the party that pays him.'

The Supreme Court of the United States declared in Robertson v. Sichel, 127 U.S. 507, 515-516, 8 S.Ct. 1286, 1290, 32 L.Ed. 203, that, 'A public officer or agent is not responsible for the misfeasances or positive wrongs, or for the nonfeasances or negligences or omissions of duty, of the subagents or servants or other persons properly employed by or under him, in the discharge of his official duties. Story, Ag. § 319.' In that case, it was held that a collector of customs is not personally liable for the negligence of a subordinate in keeping the trunk of an arriving passenger on a pier rather than properly sending it to the public store. As a result of the subordinate's negligence, the trunk was destroyed by fire. The Supreme Court recognized that 'The subordinate who was guilty of the wrong, if any, would undoubtedly be liable personally for the tort; but to permit a recovery against the collector, on the facts of this case, would be to establish a principle which would paralyze the public service. Competent persons could not be found to fill positions of the kind, if they knew they would be held liable for all the torts and wrongs committed by a large body of subordinates, in the discharge of duties which it would be utterly impossible for the superior officer to discharge in person.' Continuing, the Supreme Court further pointed out that 'In Keenan v. Southworth, 110 Mass. 474, it was held that a postmaster was not liable for the loss of a letter, occasioned by the negligence or wrongful conduct of his clerk. The court said: 'The law is well settled, in England and America, that the postmaster general, the deputy postmasters, and their assistants and clerks, appointed and sworn as required by law, are public officers, each of whom is responsible for his own negligence only, and not for that of any of the others, although selected by him and subject to his orders.' The court cited, to sustain this view [cases from many jurisdictions including Schroyer v. Lynch, 8 Watts 453].' That Robertson v. Sichel, supra, continues to be recognized as the controlling federal authority on the point under consideration, see Larson v. Domestic & Foreign Corp., 337 U.S. 682, 688, f.n. 8, 69 S.Ct. 1457, 93 L.Ed. 1628.

Outside jurisdictions hold to like effect. In Dowler v. Johnson, 225 N.Y. 39, 121 N.E. 487, 3 A.L.R. 146, Judge Cardozo said 'We do not doubt the rule invoked by counsel for the defendant, and sustained by super-abundant citations, that public officers are not liable for the negligence of their subordinates unless they co-operate in the act complained of, or direct or encourage it. [citing cases including Robertson v. Sichel, 127 U.S. 507, 8 S.Ct. 1286, 32 L.Ed. 203 and Story on Agency, § 319.] That is at least the general rule, and, if it is subject to any other qualifications, they are not now material.'

In State v. Kolb, 201 Ala. 439, 78 So. 817, 818, 1 A.L.R. 218, the State Commissioner of Agriculture and Industries was held by the Supreme Court of Alabama not to be liable for the default of his special food and drug clerk. It was there stated that 'The general proposition that an officer is not liable for the defaults and misfeasances of his clerks or assistants, even though they are appointed by him and are under his control, in the absence of allegation and proof that the officer was negligent or at fault in failing to exercise proper care and prudence in selecting the assistant or clerk, or in failing to properly supervise and superintend the acts and services of such employe in the work for which he was so selected, the doing, or failure to do which caused the loss or injury or damage, is well settled. In such cases, in the absence of a special statute or law to the contrary, the assistant or clerk, and his bondsmen if any he have, are liable, but not the officer or his bondsmen. This has been repeatedly decided by this and most other courts.' See, also, to similar effect, Smith v. Olander, 251 Mich. 503, 232 N.W. 364.

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