O'donnell v. Inhabitants of North Attleborough
| Decision Date | 27 May 1912 |
| Citation | 98 N.E. 1084,212 Mass. 243 |
| Parties | O'DONNELL v. INHABITANTS OF NORTH ATTLEBOROUGH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John W. Cummings and Charles R. Cummings, both of Fall River, for plaintiff.
Fred B Byram and Frederick S. Hall, for defendant.
The defendant town has an electric lighting plant under the provisions of the statutes now codified into R. L. c. 34, and the acts in amendment thereof. Section 28 of this chapter provides that any city or town which does so shall be liable for 'any injury or damage to persons or property caused' by the maintenance or operation of its plant 'in the same manner and to the same extent as a private corporation.' Other statutes provide that any 'person or corporation' that negligently causes the death of a person shall under certain restrictions be liable, in an action by the executor or administrator of the deceased person, to damages as therein stated. R. L. c. 171, § 2; St 1907, c. 375. This action is brought under the last-cited statutes to recover damages for the death of the plaintiff's intestate alleged to have been caused by the defendant's negligence in the maintenance and operation of its electric lighting plant. The first question presented is whether such an action against a town can be maintained.
It is suggested by the plaintiff that this point cannot now be raised because it does not appear to have been taken at the trial. But the defendant then contended that on the evidence a verdict should be ordered in its favor. It may now support this contention by any lawful argument. Parrot v. Mexican Central Ry., 207 Mass. 184, 190, 93 N.E. 590, 34 L. R. A. (N. S.) 261; Vermilye v. Western Union Telegraph Co., 207 Mass. 401, 405, 406, 93 N.E. 635.
The power to maintain gas and electric lighting plants was given to cities and towns by St. 1891, c. 370. Section 16 of this act created the same liability for negligence which is now set forth in R. L. c. 34, § 28. This created no liability for death; for in 1891 there was no statute imposing upon such a private corporation liability for the death of one not in its service or employment, though caused by its negligence. See the discussion of this question by the present Chief Justice in Brooks v. Fitchburg & Leominster St. Ry., 200 Mass. 8, 86 N.E. 289. Such a liability was first created by St. 1897, c. 416, which gave a remedy against a corporation 'operating a gas or electric light plant or system,' which by its negligence or the unfitness or gross negligence of its servants or agents caused the death of a person who was not in its employ and who was exercising due diligence. This act, with St. 1898, c. 565, giving a similar remedy against any person or corporation, was afterwards codified into R. L. c. 171, § 2, which since has been amended by St. 1907, c. 375.
The question therefore is whether the general language, 'a person or corporation,' must be taken to include cities and towns. We state the question in this form, because we think it plain that the codification of St. 1891, c. 370, § 16, into R. L. c. 34, § 28, cannot give any broader meaning to the words of the original statute than that which they had at the time of their enactment. Great Barrington v. Gibbons, 199 Mass. 527, 85 N.E. 737.
It has been a general rule in our legislation that statutes passed for the regulation of the rights and liabilities of corporations are to be applied only to private or moneyed corporations and not to public or municipal corporations or quasi corporations. Brooks v. Fitchburg & Leominster St. Ry., 200 Mass. 8, 18, 86 N.E. 289; Linehan v. Cambridge, 109 Mass. 212, 213. As was said in the case last cited, the main purpose in the organization of the latter is political; the object of the Legislature in creating them has been to regulate the performance of public and political duties. Ware v. Fitchburg, 200 Mass. 61, 67, 68, 85 N.E. 951. And see the cases gathered in Donahue v. Newburyport, 98 N.E. 1081. And it still remains true, although there have been two revisions of our statutes since the decision of Linehan v. Cambridge, ubi supra, that 'the statutes of the commonwealth which relate to [cities and towns] are collected and classified by themselves,' R. L. tit. 7, cc. 25-34; while those which relate to the powers, duties and liabilities of corporations contain no reference to towns or cities, but are 'devoted to the regulation of private and moneyed corporations,' R. L. tit. 15, cc. 109-126. It is especially noteworthy that the powers and liabilities of cities and towns which undertake to maintain gas or electric lighting plants are dealt with by themselves in one part of the provisions for the regulation of such public or governmental corporations, R. L. c. 34; while gas and electric light companies are considered, and provision is made for the conduct of their affairs and for the regulation of their powers and liabilities by an entirely different set of requirements, R. L. c. 121. When the Legislature did intend that some of these latter provisions should be applicable to cities and towns, this was done by express enactment. R. L. c. 121, § 38. We have here a case for the application of the maxim, 'expressum facit cessare tacitum.' The provisions of R. L. c. 34, § 30, do not relate to this subject-matter. So far as they afford ground for argument they tend to support the view which we have stated.
Accordingly we are of opinion that the language of R. L. c. 171, § 2 like that of St. 1897, c. 416, and of St. 1898, c. 565, does not include within its scope municipal or quasi municipal corporations (Donahue v. Newburyport, ubi supra), and that this action cannot be maintained...
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