Gates v. Town of Milan

Decision Date02 May 1911
Citation76 N.H. 135,80 A. 39
PartiesGATES v. TOWN OF MILAN.
CourtNew Hampshire Supreme Court

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

Case for negligence by Lillian E. Gates, as administratrix, against the Town of Milan, to recover damages against defendant town for the death of plaintiff's intestate while employed by the town as a laborer in making repairs to a highway pursuant to work done by the town under Laws 1905, c. 35, and Laws 1907, c. 60. Defendant demurred, and the case was transferred without a ruling. Demurrer sustained.

Sullivan & Daley, for plaintiff. Rich & Marble, for defendant.

WALKER, J. It has been decided by numerous cases that a town in the performance of the duty of repairing its highways (P. S. 1901, c. 75, § 1) acts in a public or governmental capacity. "The liability of towns in respect to highways does not differ in character or extent from that which would attach to the state if it provided and maintained highways directly. It depends upon the same conditions. It is limited to that which the state permits, as set forth in the statutes on the subject." Sargent v. Gilford, 60 N. H. 543, 27 Atl. 306. See Hall v. Concord, 71 N. H. 367, 52 Atl. 864, 58 L. R. A. 455; O'Brien v. Derry, 73 N. H. 203, 60 Atl. 843; Wheeler v. Gilsum, 73 N. H. 429, 62 Atl. 597, 3 L. R. A. (N. S.) 135.

It has also been determined that towns possess a private corporate capacity in accordance with which they perform certain acts as a private corporation might, and in consequence of which their liability for damages to others is tested by the principles applied to private persona. O'Brien v. Derry, supra; Lockwood v. Dover, 73 N. H. 209, 61 Atl. 32. "So, as to the nature of municipal corporations, the theory of their dual character is too firmly imbedded in the common law to be removed, except by the lawmaking power." Rhobidas v. Concord, 70 N. H. 90, 114, 47 Atl. 82, 80, 51 L. R. A. 381, 85 Am. St. Rep. 604. When they act in a private capacity, they are subject to the same legal obligations as a private corporation; when they exercise purely governmental functions, they are not ordinarily, and in the absence of express statutory authorization, held responsible in damages for injuries suffered by others in consequence of their negligent performance of those functions. "The recognized rules for determining whether a city or town is responsible for the acts of any particular officers or agents is the character of the duty in the performance of which they were engaged at the time of the injury. If it is a public, governmental duty, in the performance of which the corporation is clothed with sovereignty, then the officer is not to be regarded as the agent of the corporation, for whose negligence it can be held responsible. * * * But if it is a private, municipal duty —one voluntarily undertaken by the corporation for its particular local advantage or pecuniary profit—then the officer, as respects that duty, is the agent of the corporation, for whose negligence it is liable, as in the case of private corporations or parties." Lockwood v. Dover, 73 N. H. 213, 61 Atl. 34.

It is practically conceded by the plaintiff that if the defendant had been engaged in the performance of its imposed duty of repairing the highway in question, under section 1, c. 75, Public Statutes, it would not be liable for the injuries sustained; but it is urged that it is liable because the work it was doing was undertaken by it voluntarily and without legislative compulsion. This contention is based upon the provisions of chapter 35, Laws of 1005, the object of which, as stated in section 1, was "to secure a more uniform system for the improvement of main highways throughout the state, by the co-operation of the municipalities and the state in providing means therefor,* * * the primary object being to secure an improvement of the highways within the limits of every town in the state." Section 3 requires each town to set apart a certain percentage of the money "annually raised and appropriated for the repair of its highways, * * * to be used for the permanent improvement of its main highways, such improvement to be made under the advice of the state engineer." Under this provision alone, it is clear that the town has no option, but must provide for and perform the work of permanent highway improvement within its territory. Section 4 provides that, if a town desires "state aid" for such highway improvement, it "shall raise, appropriate, and set apart an additional sum equal to fifty per cent. of the amount required to be set apart for the permanent improvements under section 3 of this act," and notify the Governor and council of such action. In section 5 the amount of state aid for such town is provided for. Section 6 provides that "the amount of money set apart by such city or town as applies for state aid, as provided for in sections 3 and 4, with the amount apportioned by the Governor and council, as provided for in section 5, shall constitute a joint fund for the permanent improvement of such highway or highways within such city or town as the Governor and council, and Mayor and City councils or such other board as has jurisdiction over highway expenditures of a city, or selectmen of a town, may designate for the permanent improvement of such highways." Section 7, as amended (Laws 1907, c. 60, § 1), provides: "All work of highway improvement paid for out of said joint funds shall be performed in accordance with specifications provided by the Governor and council. Where the amount of the joint fund in any one instance exceeds one thousand dollars, the work shall be done by contract awarded to the lowest responsible bidder, except, however, that upon representation by the proper authorities of any town or city that such town or city owns or will provide suitable and sufficient tools, utensils, and machinery for the execution of the work in a manner satisfactory to the Governor and council, the Governor and council may, if they deem it expedient, permit such town or city to perform the work within its boundaries upon such terms as may be acceptable to the Governor and council."

In accordance with these provisions of the statute, the defendant town, according to the plaintiff's declaration, raised and appropriated the additional sum required in section 4 in order to receive the benefit of the state aid, and was duly permitted by the Governor and council to perform the work of the permanent highway repair contemplated. It thereupon entered upon the execution of the work, during which the plaintiff's intestate, a laborer upon the road, was injured by the alleged negligence of the defendant in its method of doing the work. Upon this state of facts, the plaintiff claims that the defendant is liable, because it was not compelled by the Legislature to do the work, but voluntarily sought the privilege of doing it. While it was not compelled to do it, as it undoubtedly might have been, it accepted the privilege of doing it; and, having assumed the obligation, did it become a mere contractor with reference to the work and liable in all respects as an individual, or did it still act as a governmental agency for whose wrongful acts it is not responsible? In other words, does the mere fact that a town performs the work of highway repair under a statute that does not impose that duty upon it, but permits it to do it, determine the question of its liability and render it responsible for its acts, like a private corporation or an individual? If the defendant had not accepted the state aid and had expended the money it was obliged to set apart under section 3 for permanent highway improvement, it would have been obliged to expend the money for that...

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19 cases
  • Merrill v. City of Manchester, 6281
    • United States
    • Supreme Court of New Hampshire
    • November 29, 1974
    ...their corporate capacity, their liability for torts is tested by the same principles applied to private corporations. Gates v. Milan, 76 N.H. 135, 136, 80 A. 39, 40 (1911); Wadleigh v. Manchester, 100 N.H. 277, 278, 123 A.2d 831, 832 (1956). Furthermore, municipalities are presently and hav......
  • Town of Meredith v. Fullerton
    • United States
    • Supreme Court of New Hampshire
    • November 1, 1927
    ...N. H. 90, 114, 47 A. 82, 51 L. R. A. 381, 85 Am. St. Rep. 604; Lockwood v. Dover, 73 N. H. 209, 213, 6? A. 32; Gates v. Milan, 76 N. H. 135, 136, 80 A. 39, 35 L. R. A. (N. S.) 599; Hampton v. Hampton, 77 N. H. 373, 374, 92 A. 549, L. R. A. 1915C, 698; Illinois Trust & Savings Bank v. City o......
  • O'Brien v. Rockingham County
    • United States
    • Supreme Court of New Hampshire
    • February 6, 1923
    ...or agents of the municipality, but as independent officers. Creier v. Fitzwilliam, 76 N. H. 382, 83 Atl. 128; Gates v. Milan, 76 N. H. 135, 80 Atl. 39, 35 L. R. A. (N. S.) 599; Wheeler v. Gilsum, 73 N. H. 429, 62 Atl. 597, 3 L. R. A. (N. S.) 135; Connor v. Manchester, 73 N. H. 233, 60 Atl. ......
  • Day v. City of Berlin
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 17, 1946
    ...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 municipa......
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