Farrigan v. Pevear

• Decision Date: 24 October 1906
• Citation: 78 N.E. 855,193 Mass. 147
• Parties: FARRIGAN v. PEVEAR et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 147

78 N.E. 855

FARRIGAN v. PEVEAR et al.

Supreme Judicial Court of Massachusetts, Worcester.

October 24, 1906

COUNSEL

Geo S. Taft and Geo. R. Stobbs, for plaintiff.

Parker & Milton and Geo. A Gaskill, for defendants.

OPINION

BRALEY J.

The Stetson Home, of which the defendants are trustees, was founded and is maintained under a trust created by gift for the sole purpose of affording an education and maintenance for destitute boys, and whatever advantages the institution offers are conferred without compensation. These distinctive features are ample to bring the home, even if unincorporated within that class of benevolent institutions whose sole purpose is to furnish relief to destitute and deserving people, and therefore constitutes a valid public charity. Bartlett v. Nye, 4 Metc. 378, 380; Odell v. Odell, 10 Allen 1, 4; Jackson v. Phillips, 14 Allen, 539; Sherman v Congregational Home Missionary Society, 176 Mass. 349, 57 N.E. 702; Minot v. Atty, Gen., 189 Mass. 176, 179, 75 N.E. 149. At the outset it may be said that the case of Davis v. Central Congregational Society, 129 Mass. 367, 37 Am. Rep. 368, on which the plaintiff relies, and that of Smethurst v. Proprietors of Independent Congregational Church in Barton Square, 148 Mass. 261, 19 N.E. 387, 2 L. R. A. 695, 12 Am. St. Rep. 550, are not authorities in his favor, as the question of the liability of a public charity for the negligence of its servants or agents does not appear to have been raised or decided. See, Minns v. Billings, 183 Mass. 126, 66 N.E. 593, 97 Am. St. Rep. 420; Osgood v. Rogers, 186 Mass. 238, 240, 71 N.E. 306; Compare Chapin v. Holyoke Young Men's Christian Association, 165 Mass. 280, 42 N.E. 1130, and Donnelly v. Boston Catholic Cemetery Association, 146 Mass. 163, 15 N.E. 505. Under the authority of McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am. Rep. 529, if the home had been incorporated the plaintiff could not have maintained this action against it, for if properly selected such a corporation was held in that case not to be liable for the negligence of its servants when acting in the performance of their prescribed duties. See, also, Benton v. Trustees of Boston City Hospital, 140 Mass. 13, 1 N.E. 836, 54 Am. Rep. 436. Among the reasons given for this exemption it has been said, that being a charitable institution rendering services to the public without pecuniary profit, if the property of the charity was depleted by the payment of damages its usefulness might be either impaired or wholly destroyed, the object of the founder or donors defeated, and charitable gifts discouraged; or that if an individual accepts the benefit of a public charity he thereby enters into a relation which exempts his benefactor from liability for the negligence of servants who are employed in its administration, provided due care has been used in their selection. McDonald v. Massachusetts General Hospital, ubi supra; Perry v. House of Refuge, 63 Md. 20, 52 Am. Rep. 495; Williamson v. Louisville Industrial School of Reform, 95 Ky. 251, 24 S.W. 1065, 23 L. R. A. 200, 44 Am. St. Rep. 243; Fire Insurance Patrol v. Boyd, 120 Pa. 624, 15 A. 553, 1 L. R. A. 417, 6 Am. St. Rep. 745; Powers v. Massachusetts Homeopathic Hospital, 109 F. 294, 303, 47 C. C. A. 122, 65 L. R. A. 372. But whatever grounds may have been stated in support of these and other decisions which have held public charities exempt from actions caused by the negligence of attendants or servants, such an exemption may well rest upon the application of the rule of law which makes the principal accountable for the acts of his servant or agent. Accordingly the true inquiry is whether this rule applies to the defendants. They are not shown to have selected incompetent servants, and are conceded not only to have been ignorant of the conditions which caused the alleged injury, but to have given to the plaintiff no instructions; nor can there be imputed to them knowledge in fact of any order given by their agents to him.

By the case of Foreman v. Mayor of Canterbury, L R. 6 Q. B. 214, following the decision in the leading case of Mersey Docks v. Gibbs, L. R. 1 H. L. 93, it was decided that there was no distinction as to liability for the negligence of servants whether they were employed by a corporation established for a public purpose, or by a private person or corporation. This doctrine was approved and followed in the cases of Glavin v. Rhode Island Hospital, 12 R.I. 411, 34 Am. Rep. 675, and of Donaldson v. General Public Hospital, 30 N. B. 279 where a public charity was held liable in tort for damages suffered by patients from the negligence of servants, though subsequently, by Pub. Laws R.I. 1880, p. 107, c. 802, such institutions in that state are now exempt from this measure of liability. The plaintiff's argument in effect asks us to follow the last two cases, which have been decided since our former decision in McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am. Rep. 529. But in this commonwealth the rule of liability enunciated by the principal case has not been so broadly applied, and neither cities nor towns in the performance of authorized municipal acts independently of certain exceptions defined by our decisions, nor public officers, although liable in damages for personal acts of negligence which cause injury to the persons or property of others when discharging the duties of their office, are held liable for the misfeasance of their servants. Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332; Tindley v. Salem, 137 Mass. 171, 50 Am. Rep. 289; Benton v. Trustees of Boston City Hospital, ubi supra; Rome v. Worcester, 188 Mass. 307, 74 N.E. 370; Dickinson v. Boston, 188 Mass. 595, 599, 75 N.E. 68, 1 L. R. A. (N. S.) 664, and cases cited; Moynihan v. Todd, 188 Mass. 301, 304, 305, 306, 74 N.E. 367, and cases cited; Haley v. Boston, 191 Mass. 291, 292, 77 N.E. 888. See, also, 2 Dill. Mun. Corp. (4th Ed.) § 974. The reason for this rule is, that acting for the benefit of the public solely in representing a public interest, whether by a municipality, or by a public officer, ...