Fournier v. City of Berlin

• Decision Date: 05 May 1942
• Citation: Fournier v. City of Berlin, 92 N.H. 142, 26 A.2d 366 (N.H. 1942)
• Parties: FOURNIER v. CITY OF BERLIN.
• Court: New Hampshire Supreme Court

26 A.2d 366

FOURNIER

v. CITY OF BERLIN.

Supreme Court of New Hampshire. Coos.

May 5, 1942.

Transferred from Superior Court, Coos County; Blandin, Judge.

Case by Mitchell Fournier against City of Berlin for personal injuries. Facts agreed, and case transferred from trial term without ruling.

Judgment for defendant.

Case, to recover for personal injuries sustained by the plaintiff in Gorham on April 21, 1939, when he was struck by a motor truck owned by the city of Berlin and operated by an employee of its public works department. Facts agreed.

At the time of the accident the defendant was engaged in the reconstruction of a certain public highway in Berlin known as Sweden Street. Stone for the construction of a retaining wall, which was a part of the Sweden Street project, was quarried from a ledge situated about a mile south of the southerly boundary of Berlin and within the limits of the town of Gorham. The stone at that point was more readily obtainable and less expensive than that available in Berlin.

Most of the laborers engaged in the street work and in the quarrying of the stone were paid by the Federal Government under an agreement between the defendant and the Works Progress Administration. The defendant paid for the engineering and supervision of the work, for the operation of trucks and machinery, and for all materials. The workmen employed in quarrying were carried to and from their work in trucks owned by the defendant and used during the continuance of the project mainly for the purpose of conveying stone from the quarry to Sweden Street.

Just before the close of working hours on the day of the accident Kenneth A. Mitchell, the operator of one of these trucks, was driving toward the quarry to pick up the crew and tools and take them back to Berlin when he ran into and injured the plaintiff, who was a WPA laborer employed at the quarry. The negligence of Mitchell and the due care of the plaintiff are conceded.

The parties agree that if on the foregoing facts the defendant is "answerable for the negligence of the said Kenneth A. Mitchell, and is not immune by reason of being a municipal corporation engaged in a governmental function, and is not privileged or immune by any other rule of law," judgment may be ordered for the plaintiff for $1,650. If the defendant is held not to be responsible, judgment is to be ordered for the defendant, no costs.

Transferred by Blandin, J., without a ruling.

Hinkley & Hinkley, of Lancaster (Irving A. Hinkley, of Lancaster, orally), for plaintiff.

Arthur J. Bergeron, City Sol, of Berlin, for defendant.

MARBLE, Justice.

Plaintiff's counsel do not challenge the established doctrine that a municipal corporation is ordinarily immune from liability for injuries caused by the negligent performance of a governmental duty. Gilman v. Concord, 89 N.H. 182, 184, 195 A. 672, and cases cited. They contend, however, that the Sweden Street project was essentially a corporate rather than a governmental enterprise, since free labor and payment by the Federal Government to workmen who would otherwise have been on the city's relief rolls must have induced the undertaking. They also argue that the city in quarrying and transporting the stone was engaged in a private business transaction for its own "special advantage and pecuniary profit."

These contentions cannot be sustained. While it is true that a municipal corporation, when it acts in a private capacity for compensation, is responsible for the negligence of its agents precisely as though it were a private corporation (Douglas v. Hollis, 86 N.H. 578, 580, 172 A. 433, and cases-cited), it is also true that a municipal enterprise does not become a private one merely because the municipality is free to choose the manner of performing the work or because financial benefit is incidentally derived from the choice. Gates v. Milan, 76 N.H. 135, 80 A. 39, 35 L.R.A, N.S, 599.

The character of the work here undertaken was that of highway improvement, and such work "By whomsoever done, under legislative authority, * * * retains its essential public character, and does not in any event become the private, local work of the town." O'Brien v. Derry, 73 N.H. 198, 199, 60 A. 843, 844. Nor is the result affected by the particular method which the municipality employs in the prosecution of the work. In the present case the quarrying and transportation of the stone and the conveyance of the workmen to and from the quarry were not independent business activities but merely a practical means of facilitating the execution of the primary project, which was the reconstruction of Sweden Street. See Balashaitis v. Lackawanna County, 296 Pa. 83, 145 A. 691.

The fact that the project was voluntarily initiated ...