Johnson v. City of Somerville
| Decision Date | 15 May 1907 |
| Parties | JOHNSON v. CITY OF SOMERVILLE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Florence F. Sullivan and Joseph M. Sullivan, for plaintiff.
Frank W. Kaan, for defendant.
This case comes up on a report after a verdict for the plaintiff.
What the plaintiff complained of in this action was that his cellar was flooded because of ashes being dumped into a water course on the next lot of land owned by the heirs of Mary C Gurney. The jury must be taken to have found that there was a water course on the next lot, and that the plaintiff's cellar was flooded by reason of the dumping of ashes into it.
The question left open under the report is whether on any aspect of the evidence the jury were warranted in finding that the defendant city was liable.
It appared that the water course in question was a brook which ran dry in summer. There was evidence that when it ran dry a mudhole of stagnant water was left on the premises in or near its course. The record of the board of health of the defendant city showed that in 1893 that board voted that the brook 'must be drained to the sewer,' and in 1896 the board passed the same vote with the addition that the work should be done by the heirs of Mary C. Gurney.
At the trial the plaintiff testified that the deposit of ashes began in 1896 and continued for four years; that he knew of the deposits and never made any attempt to prevent them.
The plaintiff then called one Huse, who testified that he 'was superintendent of collection of ashes and offal' of the defendant city from October, 1895, until February 1902; that collections of ashes were made in the vicinity of the locus on Fridays during this period, by teams in the employment of the board of health or of the city, and on being asked which, he said in the service of the city; that the men who did the work were in the city's service; that the deposits began on the Gurney estate in 1896 or 1897, and continued three or four years; that during this filling he did not undertake to make an artificial course for any water on the lot; that the Gurney estate was a convenient place to deposit ashes; that he used to like it; that collections of ashes were made throughout the whole of the defendant city on Fridays, but the only deposit that was made on the Gurney estate was what was collected nearest the lot, as a matter of convenience. On cross-examination he testified that when he had charge of the collection of ashes he and the men who drove the carts were engaged in the board of health department of the city, and that the dumping of ashes on the lot in question was first suggested to him by Mr. Page who was the agent of the board of health; and on redirect examination that when he said the men were employed by the board of health he meant by the city in the department of the board of health.
The chairman of the board of health testified that the health department had an appropriation 'for carrying on all matters connected with the health department and the collection of ashes and offal,' and that apart from that he had no specific fund for the payment of any particular work, no other fund. He further testified that: 'If there has been any filling there [on the Gurney estate], it has been done not by orders of the board of health.'
In spite of this denial on the part of the chairman of the board of health, it was perhaps a question for the jury whether Huse in dumping the ashes was acting for the board of health or for the health department of the defendant city, and we assume that to be so.
If the board of health of the defendant city, acting under Rev. Laws, c. 75,§§ 65, 67, had ordered the heirs of Mary C. Gurney to fill up the water course and on their not complying with that order had caused the filling here complained of to be done by Huse, it is conceded that the defendant city would not be liable.
If the filling here complained of was not found by the jury to have been made under an order of the board of health, they must have found that it was made by Huse of his own motion because he found it convenient to dump there the ashes collected by him, as an employé of the city, from the residences in that neighborhood.
The way and the only way in which the plaintiff has made out that the act of Huse (and those acting with him) was in law the act of the defendant city was in the proof that what Huse did was done in the course of his employment by the defendant city in removing ashes from residences in the neighborhood.
It was decided in Haley v. Boston, 191 Mass. 291, 77 N.E. 888, 5 L. R. A. (N. S.) 1005, that such a removal of ashes was a public service which any municipal body in the commonwealth could undertake if it chose so to do. The removal of ashes is in this respect like a Fourth of July celebration, as to which see Tindley v. Salem, 137 Mass. 171, 50 Am. Rep. 289.
The fact that in the case at bar no ordinance was put in evidence establishing a health department and providing that ashes should be removed by the health department established by it from private residences (inter alia) does not distinguish this case from Haley v. Boston, 191 Mass. 291, 77 N.E. 888, 5 L. R. A. (N. S.) 1005. The decision of a city to remove ashes or to celebrate the Fourth of July can be proved by any evidence and not necessarily by an ordinance. No ordinance appears to have been passed in Tindley v. Salem. The decision by a city to remove ashes is not a legislative act and therefore need not be signified by an ordinance. In Tindley v. Salem this court held that the defendant city had decided to celebrate the Fourth of July, although it was not alleged that an ordinance to that effect had been adopted.
This brings us to the question of the defendant's liability in the case at bar if the jury found that Huse in removing the ashes was in the service of the city and not of the board of health acting as such.
If the plaintiff had been run over and injured through the negligence of a driver of one of the defendant's carts, while it was being used in the removal of the ashes here in question, he could not have recovered damages for the injury from the defendant city. That is established by the recent case of Haley v. Boston, 191 Mass. 291, 77 N.E. 888, 5 L. R. A. (N. S.) 1005.
The ground on which it is contended that the city is liable here is that the rule applied in Haley v. Boston is confined to cases of negligence and does not apply to injuries caused by intentional acts, that is to say, by acts which if done on the plaintiff's land in place of being done on land not owned by the plaintiff would be ground for an action of trespass quare clausum fregit, as distinguished from an action on the case.
In the opinion of a majority of the court no distinction can be made between negligent and intentional acts.
In support of the distinction between negligent and intentional acts we have been referred to the dictum of Gray, C.J., in Hill v. Boston, 122 Mass. 344, 358, 23 Am. Rep. 332, and the cases there cited.
In delivering the opinion in Hill v. Boston, Gray, C.J., said:
This dictum was repeated in substance by C. Allen, J., in Tindley v. Salem, 137 Mass. 171, 172, 50 Am. Rep. 289, and by Knowlton, C.J., in Moynihan v. Todd, 188 Mass. 301, 305, 74 N.E. 367, 108 Am. St. Rep. 473. The Chief Justice in the last case added that:
If this distinction between negligent and intentional acts is law the conclusion reached in Manners v. Haverhill, 135 Mass. 165, Kelley v. Boston, 186 Mass. 165, 71 N.E. 299, 66 L. R. A. 429, and Barry v. Smith, 191 Mass. 78, 77 N.E. 1099, 5 L. R. A. (N. S.) 1028, was wrong. And there was no necessity in deciding Hawks v. Charlemont, 107 Mass. 414, to create the rule of a town's liability when it elects to do by its own agents work which by the statutes is imposed on a public officer. The rule originally laid down in Hawks v. Charlemont has been followed and affirmed in ...
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