Hammond v. Monmouth County

• Decision Date: 24 July 1936
• Docket Number: No. 18.,18.
• Citation: 186 A. 452
• Parties: HAMMOND et al. v. MONMOUTH COUNTY.
• Court: New Jersey Supreme Court

186 A. 452

HAMMOND et al.

v. MONMOUTH COUNTY.

No. 18.

Supreme Court of New Jersey.

July 24, 1936.

Appeal from Court of Common Pleas, Monmouth County.

Action by William Hammond, by his next friend, Harry Hammond, and another against the County of Monmouth. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Argued May term, 1936, before BROGAN, C. J., and CASE, and PERSKIE, JJ.

Applegate, Stevens, Foster & Reussille, of Red Bank, for appellant.

Quinn, Parsons & Doremus, of Red Bank, for appellees.

PERSKIE, Justice.

This appeal involves the tort liability of a municipal corporation. The law on this subject is clear. The principles of law which govern have been stated and restated many times. Thus it is now well settled that "a municipality is not liable to an individual for its failure to exercise an imperative governmental function, or for the negligence of its officers or agents in the performance of a public duty imposed on it by law." Alias v. Borough of Rumson, 115 N.J.Law, 593, 594, 181 A. 175, 102 A.L.R. 648. It is now also equally well settled that "this exemption from liability does not extend to private injury resulting from active wrongdoing chargeable to the municipal corporation." Alias v. Borough of Rumson, supra. The application of these principles to various factual situations frequently gives rise to hardships and difficulties. In reason and logic, it is difficult to understand why there should be any distinction between passive and active wrongdoing, for, in either event, resultant consequences to the injured party are, of course, the same. Thus many legal authors contend with force and conviction that there appears to be no justifiable reason why a municipality should be any the less or more culpable for the negligent doing of an act than for the negligent failure to do the act. Nevertheless, this distinction does exist, and, until the Legislature decrees otherwise, it must and shall be respected and followed.

To determine, therefore, the applicability of these principles to the case at bar we recur to the facts.

In the early hours of the morning of September 8, 1934, while driving a truck in the course of his employment as a milkman, plaintiff met with an accident giving rise to the injuries for which he now seeks to recover. It appears that the defendant, county of Monmouth, had made an excavation in the center of the highway in order to repair bricks in a culvert. The plaintiff saw the hole, but too late to avoid the accident. The rear wheels of the truck he was driving dropped into the excavation and the truck overturned. At the time of the accident there seem to have been no lights to warn on-coming motorists, and there were no guards or barriers surrounding the work. During the course of the trial defendant's motion for a nonsuit and a directed verdict were denied. The jury returned a verdict for the plaintiff in the sum of $2,500 and $100.91 costs, and rule to show cause why a new trial should not be granted on the grounds of excessive damages and the verdict being contrary to the weight of the evidence was argued and discharged. Defendant then instituted this appeal.

First. Defendant contends that the trial court fell into reversible error in refusing to grant a nonsuit or direct a verdict in its favor. Since this contention is founded on the premise that at the time the injuries were sustained by the plaintiff the defendant was engaged in a governmental duty imposed on it by the Legislature, we approach a consideration of the basic question involved. Was there active wrongdoing chargeable to the county in the case at bar? We think so. Concededly, in repairing this culvert, the county was doing an obligatory act under legislative mandate. P.L.1918, p. 604, par. 1301 (Comp.St.Supp. 1924, § 48—*1301). In State v. Erie R. Co, 84 N.J.Law, 661, 663, 87 A. 141, 143, 46 L. R.A.(N.S.) 117, this court held: "Briefly stated, the doctrine of our cases is that, where the doing of a thing that would otherwise be a public nuisance is authorized by the Legislature, the doing of that thing by the person so authorized, in the manner and for the purpose authorized, cannot constitute a public nuisance in the absence of negligence, and such negligence must consist of something more than the mere doing of the authorized act."

We think that in the instant case there was "something more than the mere doing of an authorized act." Under the proofs it was open to the jury to find, on the disputed facts, if it so chose, that there were neither proper or sufficient lights nor barriers around the excavation. Thus, notwithstanding that the Legislature authorized the repair to this culvert, and that the only way the culvert could be repaired was by an excavation in the highway, nevertheless the failure of the county to provide adequate protection constituted active wrongdoing on its part. Such failure to protect motorists transcends the bounds of mere passive negligence. The wrongdoing herein alleged is positive misfeasance within the holdings of our cases. In the case of Florio v. Jersey City, 101 N.J.Law, 535, 537, 129 A. 470, 471, 40 A.L.R. 1353, this court held: "The active wrongdoing must be chargeable to the municipality in order to render it liable, e. g. where a municipality directs its employee to dig a hole in a public highway and leaves it unguarded or participates in some other act of misfeasance of its employee through which a person suffers in jury." See, also, Jersey City v. Kiernan, 50 N.J.Law, 246, 13 A. 170; Hart v. Board of Chosen Freeholders of Union County, 57 N.J.Law, 90, 29 A. 490; Kehoe v. Borough of Rutherford, 74 N.J.Law, 659, 65 A. 1046, 122 Am.St.Rep. 411; Garrison v. Borough of Fort Lee, 92 N.J.Law, 566, 106 A. 381; Ennever v. Borough of Bergenfield, 105 N.J.Law, 419, 144 A. 809; Olesicwicz v. City of Camden, 100 N.J.Law, 336, 126 A. 317.

We desire, moreover, to point out, although no point was made or argued on that score for plaintiff, that the discharge of the rule to show cause, including as a reason that the verdict was against the weight of the evidence, operates to estop the defendant from arguing the questions of nonsuit or direction of a verdict, even though the same be reserved. Molnar v. Hildebrecht Ice Cream Co, 110 N.J.Law, 246, 164 A. 300. It is res adjudicata. Robins v. Mack International Motor Truck Corp, 113 N.J.Law, 377, 174 A. 551, and cases therein cited.

Second. Defendant contends that P.L.1933, c. 460, p. 1550 (N.J.St.Annual 1934, § *136—1829B), completely absolves it from liability. This is not so. The act provides: "1. No county * * * shall be liable for injury to the person from the use of any public grounds, buildings or structures, any law to the contrary notwithstanding." Obviously culverts do not come within the purview or scope of that act.

Third. Defendant...