Cushman v. Grafton County

CourtSupreme Court of New Hampshire
Citation79 A.2d 630,97 N.H. 32
PartiesCUSHMAN v. GRAFTON COUNTY et al.
Decision Date03 April 1951

Morse, Hall & Morse and Thomas L. Marble, Concord, for plaintiff.

Sheehan, Phinney & Bass, Manchester, and Robert A. Jones, County Solicitor, Lebanon, for defendants.

JOHNSTON, Chief Justice.

In Reynolds v. Nashua, 93 N.H. 28, 29, 35 A.2d 194, 195, this court held that it was settled in this jurisdiction that a city was not liable for any negligence of its agents or servants while performing a governmental function. 'The plaintiff does not dispute the principle, settled in New Hampshire, that a municipal corporation engaged in a governmental function is not liable for any negligence of its agents or servants.' This same principle of law applies to a county. Dempster v. Grafton County, 88 N.H. 472, 184 A. 866 and O'Brien v. Rockingham County, 80 N.H. 522, 120 A. 254. On page 473 of 88 N.H., on page 866 of 184 A. of the former opinion, the Court stated: 'The case of O'Brien v. Rockingham County, 80 N.H. 522, 523, 120 A. 254, is decisive against the plaintiff. It held that counties are not liable for defaults in the exercise of public governmental functions without statutory provision therefor.'

The maintenance of a jail including the employment of a turnkey is of course a governmental function. Dempster v. Grafton County, supra. However, the plaintiff argues that the county was engaged in a commercial enterprise because 'it was good business to let them [Mr. and Mrs. Cushman] occupy it [the dwelling] rather than to pay Mr. Cushman a salary large enough to permit him to hire an apartment elsewhere.' As was stated in Reynolds v. Nashua, supra, 93 N.H. at page 30, 35 A.2d at page 195 'A governmental function does not lose its character by incidental advantages or economies developed in the work.' There is here no 'particular and specific financial return' stated on page 31 of 93 N.H., on page 196 of 35 A.2d of the last cited opinion to be generally an indication of a commercial rather than a governmental enterprise. The occupation by Mr. Cushman was incidental to his labor and employment as turnkey. 'No relation of landlord and tenant existed between the parties.' Durivage v. Tufts, 94 N.H. 265, 267, 51 A.2d 847, 849. Mrs. Cushman was in the house in the right of her husband as employee of the defendant county. She was not a licensee of the county independently of the employment of her husband. Accordingly any liability of her estate on the theory of such a license need not be considered. The occupation of the house by both husband and wife was incidental to the employment of the husband as turnkey, which was a part of the governmental function of the maintenance of the jail.

It is claimed that since the county was insured under a general liability policy and since the defense of the action is being carried on by the insurance company, a different rule of liability should be applied from that under which municipal corporations have been held immune from liability for torts committed in the course of governmental activities.

This is not such a case as Fox v. Manchester, 88 N.H. 355, 358, 189 A. 868, 870, where it was conceded in court that the defense was being conducted by an insurance company and that the liability of the defendant should be decided under the applicable statute 'precisely as though the city were a private employer.'

Nor is it such a case as Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905, 71 A.L.R. 1055. There it was held that the immunity of an employer parent from suit by his employee minor son for negligence was due to the latter's disability to sue and not from lack of violated duty on the part of the former. The disability for bringing suit arose from the harmful effect a suit would have upon discipline and family life. It was considered that the carrying of insurance by the father would prevent such injurious results of a suit and accordingly such a disability did not exist in the case under consideration because he in fact carried employers' liability insurance.

In the instant case there is no disability to sue. The plaintiff fails because the defendant is not liable under the circumstances. This lack of liability is based upon public policy which has existed from...

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20 cases
  • Merrill v. City of Manchester, 6281
    • United States
    • Supreme Court of New Hampshire
    • November 29, 1974
    ...is inconsistent with its legislative history and would give an unreasonable meaning to its expressed terms. Cushman v. Grafton, 97 N.H. 32, 79 A.2d 630 (1951); Plymouth School Dist. v. State Bd. of Educ., 112 N.H. 74, 289 A.2d 73 (1972); N.H.H.R.Jour. 633, 640, 970 (1951). The city's other ......
  • Christie v. Board of Regents of University of Mich.
    • United States
    • Supreme Court of Michigan
    • September 22, 1961
    ...policy is for the purpose of protection against liability and not for the creation or increase of liability.' Cushman v. Grafton County, 97 N.H. 32, 79 A.2d 630, 632. 'A large majority of the courts which have considered the question have held that the purchase of an insurance policy does n......
  • Marcotte v. Timberlane/Hampstead Sch. Dist.
    • United States
    • Supreme Court of New Hampshire
    • February 9, 1999
    ...remains liable up to the $1,000,000 limit of its primary policy.Our holding flows from the intent behind RSA 412:3. In Cushman v. Grafton , 97 N.H. 32, 79 A.2d 630 (1951), this court 143 N.H. 336 concluded that a county's purchase of liability insurance did not render the then-existing rule......
  • Marcotte v. Timberlane/Hampstead School Dist., 94-061
    • United States
    • Supreme Court of New Hampshire
    • February 9, 1999
    ...remains liable up to the $1,000,000 limit of its primary policy. Our holding flows from the intent behind RSA 412:3. In Cushman v. Grafton, 97 N.H. 32, 79 A.2d 630 (1951), this court concluded that a county's purchase of liability insurance did not render the then-existing rule of municipal......
  • Request a trial to view additional results

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