Hassett v. Thurston

• Decision Date: 18 June 1920
• Docket Number: No. 5307.,5307.
• Citation: 110 A. 394
• Parties: HASSETT v. THURSTON, Town Treasurer.
• Court: Rhode Island Supreme Court

110 A. 394

HASSETT

v. THURSTON, Town Treasurer.

No. 5307.

Supreme Court of Rhode Island.

June 18, 1920.

Exceptions from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Justice.

Action of trespass on the case by Alfred F. Hassett, through his father and next friend, against Winthrop D. Thurston, Town Treasurer. Demurrers to the declaration were sustained, and plaintiff excepted. Exceptions overruled, and case remitted for further proceedings.

Philip S. Knauer, John F. Collins, and George Hurley, all of Providence, for plaintiff.

William T. O'Donnell, of Bristol, and Waterman & Greenlaw, of Providence, for defendant.

VINCENT, J. This is an action of trespass on the case for negligence, brought by Alfred F. Hassett, through his father and next friend, against Winthrop D. Thurston, as town treasurer of the town of Bristol, to recover damages for personal injuries. The plaintiff's declaration is in four counts. The defendant demurred to all of the counts, and the demurrer was sustained by the superior court. The plaintiff states in his brief that his argument here is based upon the decision of the superior court in sustaining the demurrer to the third count, and we may therefore restrict our consideration to the question or questions thereby raised.

The plaintiff's third count alleges that on the 16th day of July, 1915, at about 8 o'clock p. m., the plaintiff was traveling upon a certain walk crossing a public square in the town of Bristol known as "The Common," which said walk crosses said common in a diagonal direction from Wood street to State street, public highways in said town; that said square or common was located in the thickly populated portion of said town, and was surrounded by houses and buildings located in close proximity to each other, and was a place where the public was in the habit of congregating in large crowds and of passing and repassing in great numbers; that the firing of rockets in said square was dangerous to the surrounding buildings and to the plaintiff and others of the public who were wont to congregate in said square, whereupon it became the duty of the town of Bristol not to permit, aid, or abet upon said square the maintenance of a public nuisance or the using of any rocket except for the purpose of exhibiting on a suitable occasion by skilled persons duly licensed by the town council; that the town did not exercise such care, but wholly neglected so to do; that the said fireworks display was conducted by persons who had no license from the town council; that the town council had authorized, aided, and abetted in the firing of said rockets without restriction or supervision looking to the safety of the plaintiff and the public; that the town council had authorized certain bodies of people, against the statute, to make fireworks display, without licensing any particular person to conduct the display, and without inquiring what persons were to conduct the display, or what knowledge, skill, or ability such persons had; that no care was taken to warn the plaintiff or the public of any danger limits by the placing or guards, or to prevent said display from becoming a nuisance; that when he reached a place 100 feet from the baseball diamond, where a display of fireworks was being conducted by certain persons, said persons conducting such display then and there set off a certain skyrocket in such close proximity to said path that heavy substances struck plaintiff, resulting in the injury complained of.

The grounds of the demurrer of the defendant to this count may be summarized as follows: (1) That the facts therein stated are not sufficient to constitute a cause of action against the defendant; (2) that the regulation of the use of said "common" and the licensing and supervision of a display of fireworks thereon is not within the ministerial duties of said town, but is within its governmental, judicial, and discretionary powers, and the said town is not accountable to the plaintiff for the nonexercise of, or the manner in which it exercises, such discretionary powers; (3) that the defendant was not bound either to supervise the display, examine the licensees as to their ability, or to provide safeguards so that the display would not become a nuisance to the plaintiff; (4) that it does not appear that the natural tendency of permitting an exhibition of fireworks on said common would be to create a public nuisance; (5) that it does not appear that said display constituted a public nuisance; and (6) that it does not appear that the plaintiff sustained the injuries he complains of through the breach of any duty owed to him by the defendant.

The third count of the declaration, which is now under consideration, alleges, in substance, that the defendant created a nuisance by issuing a license for the display of fireworks without restriction or supervision looking to the safety of the public, without specifying the particular person or persons who should conduct the display, without any inquiry as to their skill in such matters, and failed to warn the public of danger by placing guards, etc., which would prevent such display from becoming a public nuisance.

It is provided by section 4, chapter 134, General Laws of Rhode Island 1909, that:

"Every person who shall * * * enkindle or use * * * any rocket, cracker, squib or other fireworks * * * unless he shall previously obtain a special license from the town council of the town * * * and for the purpose of exhibition on a suitable occasion, shall be fined ten dollars for each offense."

While this statute does not in terms specifically command or authorize a town council to grant licenses, the authority to do so, in its discretion, must be implied. In the case of Lincoln v. City of Boston, 148 Mass. 578, 20 N. E. 329, 3 L. R. A. 257, 12 Am. St. Rep. 601, it was alleged that the firing of a cannon on Boston Common, under a license granted in pursuance of a city ordinance, so frightened the plaintiff's horse while being driven along an adjoining street that he ran away, and in collision with another team threw the plaintiff out and injured him, and that such tiring was a public nuisance. A demurrer to the declaration was sustained. The ordinance referred to was substantially like the provision of our statute above quoted. In its opinion the court said that the license which the city gave "was not given by it as an act of ownership, but as an act of municipal gov eHiment"; that the purpose of the statute "is prohibitory, and the license which it implicitly authorizes * * * is merely a removal of the prohibition, and of the liability to a penalty which otherwise would be incurred. * * * The license is not a permission granted by the agents of the owner, but an adjudication of an exception to a quasi statutory rule, made by a person who for that purpose is not the owner's agent. * * * The person who fires the cannon is not the city's agent or servant, and the firing is not the city's act."

The main question to be determined is whether or not the plaintiff's declaration states a nuisance for which the town of Bristol is responsible. Or, in other words, was the granting of the license to display fireworks upon the common the exercise of a governmental or discretionary power? The plaintiff claims that the defendant is liable in damages because its duly authorized body, its town council, authorized an act which from its nature would be liable to, and did, become a nuisance to the injury of the plaintiff. We do not think it can be reasonably said that a display of fireworks is an act intrinsically dangerous, and the plaintiff does not so allege in his declaration. Danger may, however, arise from the handling of fireworks in a careless or imprudent manner. The licensees were authorized to do something which was not unlawful. The statute recognizes that such authority may be given them by the town council, but such authority does not cover any careless or imprudent act.

Pope v. City of New Haven, 91 Conn. 79, 99 Atl. 51, L. R. A. 1917B, 1239, was a case where the plaintiff alleged that the defendant, conducting a fireworks display on the New Haven Green, negligently sent up a bomb having a defective fuse, which failed to explode in the air, but reached the ground, exploding in a vacant lot across the street, where the plaintiff was standing. The court in its opinion said:

"It is alleged that the display of fireworks took place on the public green in the defendant city and in dangerous proximity to certain of the city streets, and it has been argued that this allegation shows that the act of discharging the bombs was intrinsically dangerous, and constituted a nuisance for which the city is responsible. As pointed out already, there is no allegation that the injury resulted from such a cause."

In De Agramonte v. City of Mount Vernon, 112 App. Div. 291, 98 N. Y. Supp. 454, the, plaintiff was struck by a missile while watching a display of fireworks in a public park of the city of Mt. Vernon by the Italian societies pursuant to a license issued by the mayor. The plaintiff claimed that the associations used an improper tube to hold the bomb by reason of which the piece of iron was hurled against her, and the court in its opinion said: "The permit was in effect a license to do an act not unlawful. * * * Given by authority, pursuant to ordinance, it merely authorized the act 'to be done in a careful, prudent and lawful manner.'"

And the court further said, in discussing the case:

"'The danger arose from the negligent manner in which the licensees performed the act.' * * * The mode adopted, and of which the complaint is made, was to lodge the bomb in a cast-iron tube and discharge the bomb from it. There is not the slightest proof that the permit authorized any such tubes. * * * There was the implied condition that the act should 'be done in a careful, prudent, and lawful manner.'"

See, also, Little v. City of Madison, 49...