Kardulas v. City of Dover

• Decision Date: 28 January 1955
• Citation: Kardulas v. City of Dover, 111 A.2d 327, 99 N.H. 359 (N.H. 1955)
• Parties: Rena KARDULAS et al. v. CITY OF DOVER.
• Court: New Hampshire Supreme Court

Page 327

111 A.2d 327

99 N.H. 359

Rena KARDULAS et al. v. CITY OF DOVER.

Supreme Court of New Hampshire.

Argued Jan. 4, 1955.

Decided Jan. 28, 1955.

McCabe & Fisher, Dover, and Beamis & Davis, Somersworth, for plaintiffs.

Burns, Calderwood & Bryant and Robert E. Hinchey, Dover, for defendant.

LAMPRON, Justice.

Municipal corporations are regarded as having a dual character. 'On the one hand they are subdivisions of the state endowed with governmental powers and charged with governmental functions and responsibilities. On the other they are corporate bodies, capable of much the same acts as private corporations, and having the same special and local interests and relations, not shared by the state at large.' Prosser, Torts 1067. It is now well settled in New Hampshire, as it is in most all jurisdictions (38 Am.Jur. 261), that a municipal corporation engaged in a governmental function is not liable for any negligence of its agents, servants and employees. Reynolds v. City of Nashua, 93 N.H. 28, 29, 35 A.2d 194; Cushman v. Grafton County, 97 N.H. 32, 33, 79 A.2d 630; Shea v. City of Portsmouth, 98 N.H. 22, 26, 94 A.2d 902. There is however a trend against such immunity. Tuengel v. City of Sitka, Alaska, D.C., 118 F.Supp. 399, 400; Prosser, Torts 1068; 38 Am.Jur. 266. It is also clearly the law that where a municipal corporation acts in a private capacity it is liable for its negligence. Douglas v. Hollis, 86 N.H. 578, 172 A. 433; Shea v. City of Portsmouth, supra, 98 N.H. 23, 94 A.2d 902.

The difficulty with this apparently clear distinction between the fields of immunity and of liability however is in its application to certain particular cases. Certain activities have been held to be governmental in nature; highway improvements, Fournier v. City of Berlin, 92 N.H. 142, 26 A.2d 366, 140 A.L.R. 1054, control of fires, Reynolds v. City of Nashua, supra; Shea v. City of Portsmouth, supra, operation of a playground in a public park, Piasecny v. City of Manchester, 82 N.H. 458, 136 A. 357, or of a swimming pool, Harkinson v. City of Manchester, 90 N.H. 554, 5 A.2d 721, maintenance in the city hall of a women's lounge and lavatory. Day v. City of Berlin, 1 Cir., 157 F.2d 323. There are also many other municipal functions which are governmental in nature. Edgerly v. Concord, 62 N.H. 8. Certain functions have been held to be corporate or proprietary in nature and the municipality liable for negligence arising therefrom such as furnishing water to its inhabitants at established rates, Shea v. City of Manchester, 89 N.H. 547, 3 A.2d 103, lease of a schoolhouse for use incident and subordinate to its general purpose, Douglas v. Hollis, supra; maintenance and operation of a public sewerage system. Rowe v. City of Portsmouth, 56 N.H. 291; Mitchel v. Dover, 98 N.H. 285, 99 A.2d 409.

Laws 1905, c. 162 authorized the city of Dover 'to accept said bequest [of Arioch Wentworth] for the purposes in said will contained * * * and * * * to erect, establish, equip and maintain a hospital for the benefit of sick and disabled persons * * * and * * * shall elect five citizens of said Dover as a board of trustees * * *.' § 1. 'Said board * * * may purchase such land as may be necessary and shall have full charge, management and control of the erection, equipment and management of such building or buildings as may be necessary to carry into effect the purposes of this act; may employ and fix the compensation of such agents as they shall deem expedient * * * and make necessary rules and regulations for their own government and for the control and management of all property * * * connected with the proper conduct of said hospital.' § 2. 'The board * * * shall hold in trust all property now bequeathed, or hereafter acquired * * * and the * * * use * * * of the same, and the income thereof, shall be within the sole control and discretion of said board * * * and the same being in the nature of a public charity shall be exempt from taxation.' § 3. 'The city councils are authorized to appropriate such sums of money from time to time for the maintenance of said hospital as in their judgment may be necessary.' § 5. See also, Laws 1949, c. 430, §§ 28-30.

It has been decided in this state that a hospital organized and maintained as a charitable institution is liable to a patient for injuries sustained as a result of the negligent conduct of its servants. Welch v....