Day v. City of Berlin

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Citation: 157 F.2d 323
• Docket Number: No. 4148.,4148.
• Parties: DAY v. CITY OF BERLIN
• Decision Date: 17 September 1946

157 F.2d 323 (1946)

DAY v. CITY OF BERLIN

No. 4148.

Circuit Court of Appeals, First Circuit.

September 17, 1946.

Alexander Murchie, of Concord, N. H. (Robert C. Murchie, of Concord, N. H., and Arthur J. Bergeron, of Berlin, N. H., of counsel with him), for appellant.

Irving A. Hinkley, of Lancaster, N. H. (Arthur O. Dupont, of Berlin, N. H., of counsel), for appellee.

Before DOBIE (by special assignment), MAHONEY, and WOODBURY, Circuit Judges.

WOODBURY, Circuit Judge.

The plaintiff-appellant was injured when she fell down a flight of three steps located just inside a door opening inward from the street into a corridor of the defendant-appellee's City Hall. In the corridor there was a public telephone and also an information desk which in time of peace was manned by a city employee during the tourist season, but was not manned at the time of the plaintiff's fall. In addition, the corridor gave access to various public offices and to a women's lounge and lavatory open to the public in which the city maintained one free and two pay toilets. The pay toilets were equipped with coin operated locks of the usual type, the income from which was collected by the city and then divided between it and the owner-lessor of the locks; the former retaining 60% thereof, and remitting the remaining 40% to the latter. The plaintiff testified that she entered the corridor with the intention of using one of the pay toilets.

She brought the present action in the District Court of the United States for the District of New Hampshire, there being the requisite diversity of citizenship and amount in controversy to give it jurisdiction, to recover for the injuries which she sustained in her fall. At the trial in that court, upon the close of all the evidence, the defendant moved that a verdict be directed for it upon the ground, among others, that "In maintaining and operating its Ladies Comfort Station in the basement of the City Hall, in said Berlin, the defendant was engaged in the performance of a public governmental undertaking and was exercising a governmental function and is immune from liability in this action." The District Court granted the defendant's motion soley upon the ground stated and the plaintiff took this appeal from the final judgment entered accordingly.

In Piasecny v. City of Manchester, 82 N.H. 458, 136 A. 357, decided in 1926, the Supreme Court of New Hampshire, quoting from Clark v. City of Manchester, 62 N.H. 577, and citing Edgerly v. Concord, 62 N.H. 8, 13 Am.St.Rep. 533; Rhobidas v. City of Concord, 70 N.H. 90, 107, 47 A. 82, 51 L.R.A. 381, 85 Am.St.Rep. 604; O'Brien v. Town of Derry, 73 N.H. 198, 60 A. 843; and Gates v. Town of Milan, 76 N.H. 135, 80 A. 39, 35 L.R.A., N.S., 599, said: "Although the decisions in other jurisdictions are not harmonious, the law limiting the liability of municipalities for tort is well settled in this state. `In the absence of a statute creating the liability, no action can be maintained against a municipal corporation for an injury arising from the neglect of a public corporate duty, from the performance of which the corporation receives no special benefit, pecuniary or otherwise.' * * * `It has always been understood that it was essential for a plaintiff to show the breach of a duty owed to him privately, as distinguished from one owed to the public.' Stevens v. City of Manchester, 81 N.H. 369, 127 A. 873."

Counsel for the parties before us do not question either the accuracy or the applicability of this statement of New Hampshire law. The bone of contention between them is whether the plaintiff's injury arose from the neglect of a public corporate duty from the performance of which the city received no special pecuniary benefit, and whether the plaintiff has shown the breach of a duty owed to her privately as distinguished from one owed to her as a member of the public at large. We think that under New Hampshire law both of these questions must be resolved in the defendant's favor.

In New Hampshire the test to determine whether any given municipal undertaking is public or private in its nature is not to inquire whether the undertaking is one imposed upon the municipality by statute or whether it is one voluntarily assumed. Gates v. Milan, supra; Gilman v. Concord, 89 N.H. 182, 184, 195 A. 672. "A governmental function is determined by its character and whether it is mandatory or voluntary is immaterial." Reynolds v. City of Nashua, 93 N.H. 28, 30, 35 A.2d 194, 195. And the character of a governmental function as public or private would seem to depend upon whether it was undertaken primarily for the benefit of the people of the community as individuals or primarily for the benefit of the municipality as a corporate entity — the cases imposing liability upon municipalities for damages caused by defective sewers, and presumably also water systems, see...