Duggan v. Inhabitants of Peabody

• Citation: 73 N.E. 206,187 Mass. 349
• Parties: DUGGAN et ux. v. INHABITANTS OF PEABODY (two cases).
• Decision Date: 14 February 1905
• Court: United States State Supreme Judicial Court of Massachusetts

187 Mass. 349

73 N.E. 206

DUGGAN et ux. v. INHABITANTS OF PEABODY (two cases).

Supreme Judicial Court of Massachusetts, Essex.

February 14, 1905

COUNSEL

Wm H. Niles, for plaintiffs.

J. J Cahill and D. N. Crowley, for defendant.

OPINION

KNOWLTON C.J.

The female plaintiff, while on her own premises, not far from the defendants' quarry, was struck on the head and injured by a stone thrown from a blast in the quarry, and her husband James Duggan, suffered damages on account of her injuries. It was conceded by the defendant at the trial that she was in the exercise of due care, and that the blast was negligently exploded. One Hooper, who was the superintendent of streets duly appointed by the selectmen, was in charge of the work and the only question is whether the defendant is liable for his negligence. For his negligence as a public officer acting under the authority of law in the performance of the duties of his office in regard to matters which involve no element of profit or income to the town, but were imposed solely in the interest of the general public, the town is not liable. Hafford v. New Bedfore, 16 Gray, 297; Walcott v Swampscott, 1 Allen, 101; Buttrick v. Lowell, 1 Allen, 172, 79 Am. Dec. 721. If the enterprise in which he was engaged was conducted primarily as a work of the town, imposed upon it for the benefit of the public, but in part as a source of income, a commercial element was introduced, which made him, to that extent at least, an agent of the town, and which deprived the town of the exemption from liability for negligence which pertains to the performance of duties thar are strictly public. The purchase of real estate, to be paid for by a town and used as a stone quarry, is not ordinarily within the authority of a superintendent of streets acting merely as a public officer, and as such an officer he probably would have no right to take in charge such a quarry belonging to a town to carry on the business of quarrying and crushing stone there, even for use upon the public streets, unless the town authorized or permitted him to do so. In the present case the town has for years been making sales of broken stone from this quarry. In the year ending January 15, 1898, there were three sales, amounting to $11.50; in the next year there were seven sales, amounting to $189.37; in the next year six sales, amounting to $460.88; in the next year twelve sales, amounting to $1,193.65; and in the year of the accident there were twenty-four sales, amounting to $352.40. The money received for these sales went into the hands of the town treasurer; some of it by payments to him directly, and some through the superintendent of streets. In his annual reports to the town the treasurer accounted for all these moneys, and the amounts so received also appeared in the annual town report published by the selectmen. We think these facts bring the case within the principles stated in Collins v. Greenfield, 172 Mass. 78, 51 N.E. 454; Neff v. Wellesley, 148 Mass. 487-493, 20 N.E. 111, 2 L. R. A. 500; and Worden v. New Bedford, 131 Mass. 23, 41 Am. Rep. 185. See, also, Waldron v. Haverhill, 143 Mass. 582, 10 N.E. 481; Sullivan v. Holyoke, 135 Mass. 273-277; Oliver v. Worcester, 102 Mass. 489-500, 3 Am. Rep. 485; Norton v. New Bedford, 166 Mass. 48-52, 43 N.E. 1034; Hawks v. Charlemont, 107 Mass. 414; Aldrich v. Tripp, 11 R.I. 141, 23 Am. Rep. 434. In Neff v. Wellesley, ubi supra, the principle is stated as follows: 'When property is used or business is conducted by a town, principally for public purposes, under the authority of law, but incidentally and in part for profit, the town is liable for negligence in the management of it.' In Collins v. Greenfield, ubi supra, the plaintiff was injured while at work about a stone crusher in preparing stone for...