Heintz v. Borough of Essex Fells, 95.

• Decision Date: 20 October 1930
• Docket Number: No. 95.,95.
• Citation: 151 A. 593
• Parties: HEINTZ v. BOROUGH OF ESSEX FELLS.
• Court: New Jersey Supreme Court

151 A. 593

HEINTZ

v. BOROUGH OF ESSEX FELLS.

No. 95.

Court of Errors and Appeals of New Jersey.

Oct. 20, 1930.

Syllabus by the Court.

It is only where the business or work of a municipality is confined to the exercise of a strictly governmental function, free from any wrongdoing on its part, that immunity from responding in damages to persons injured through the negligence of its public officers, agents, or servants is warranted.

Additional Syllabus by Editorial Staff.

Appeal from Circuit Court, Essex County.

Action by Leo F. Heintz against the Borough of Essex Fells, a municipal corporation. Judgment for plaintiff, and defendant appeals.

Affirmed.

Frazer & Trimble, of Newark, for appellant.

Arthur B. Seymour, of Orange, for respondent.

McGLENNON, J.

The plaintiff sued defendant, a municipal corporation, for damages resulting from the pollution of a stream running through his farm to such an extent that the water was rendered unfit for use by his horses, cows, and chickens; and also for the burning of a fence surrounding his pasture, caused by the ignition of oil upon the surface of the stream. He recovered a verdict, and judgment was entered thereon in the Essex County Circuit Court, from which action defendant appeals to this court.

The grounds of appeal are stated as follows:

1. The trial court sustained the objection of plaintiff's counsel, to the following question addressed upon cross-examination to the plaintiff: "What did you say when you went out there and looked at the oil?" Said question being addressed to the credibility of the plaintiff.

2. Because the court charged as follows: "Of course, it may be assumed from the evidence in this case, that the oil which was placed upon the roads was within the limits of Essex Fells. The Mayor tells us that oil was put upon those roads. It may be that some of this oil which came into this brook, came from the oil which was put upon those roads; but the municipality had not any more right to discharge oil from its roads, if it knew that that was the effect of placing the oil upon the roads, into this brook and polluting it, than it had to discharge oil from its plant. Whereas the defendant is not liable in damages for injuries sustained growing out of the exercise of its governmental function.''

There was proof presented that plaintiff had owned a small farm in West Orange for over thirty years, upon which he maintained certain horses and cattle, which were! accustomed to drink at a brook, or small stream, which meandered through the farm and pasture. In 1918, the borough of Essex Fells erected a pumping station, near the bank of this brook, higher up the stream. After that an oily scum appeared upon the surface of the water, and the cattle and horses refused to drink therefrom, and plaintiff was compelled to procure water elsewhere for that purpose. It; appeared, upon one occasion, that the oil upon the water ignited and set fire to a portion of the fence surrounding plaintiff's pasture. The source of this oil was traced along the brook, and was found to come from the pumping station, and was observed to issue therefrom, through a drain leading towards the brook, and actually discharging into the brook. Certain barrels containing oil were also found sunk into the ground, near the station, from which seepage of oil was possible and it was admitted...