Kelley v. Cumberland County
| Decision Date | 17 October 1910 |
| Docket Number | 326 |
| Citation | 78 A. 276,229 Pa. 289 |
| Parties | Kelley, Appellant, v. Cumberland County |
| Court | Pennsylvania Supreme Court |
Argued April 26, 1910
Appeal, No. 326, Jan. T., 1909, by plaintiff, from judgment of C.P. Cumberland Co., Feb. T., 1909, No. 129, on verdict for defendant in case of George D. Kelley et al. v Cumberland County. Affirmed.
Trespass to recover damages for personal injuries alleged to have been caused by negligence in repairing a public road. Before SADLER, P.J.
The opinion of the Supreme Court states the case.
The court gave binding instructions for defendant.
Verdict and judgment for defendant. Plaintiff appealed.
Error assigned was the instruction of the court.
F. E Beltzhoover, with him Fillmore Maust, for appellant. -- As a general rule a municipal corporation is not responsible for the unauthorized and unlawful acts of its officers although done colore officii, but when such corporation expressly authorizes such or when done adopts and ratifies it and retains and enjoys its benefits it is liable in damages: Bathurst Boro. v. Macpherson, L.R. 4 App. Cas. 256; Smith v. West Derby Local Board, L.R. 3 C.P. Div. 423.
Where the statute gives a power to the commissioners which is discretionary and they assume to exercise the power and perform the duty and by negligence injure a third party the county is liable: Lehigh County v. Hoffort, 116 Pa. 119; Rowland v. Kalamazoo County Superintendents of the Poor, 49 Mich. 553; Reed v. Howell County, 125 Mo. 58 (28 S.W. Repr. 177); Bigelow v. Randolph, 80 Mass. 541; Vankirk v. Clark, 16 S. & R. 286.
S. B. Sadler, with him M. F. Thompson, for appellee. -- The trend of modern decisions is all in the direction of nonliability, unless a clear imposition of duty in the performance of particular acts appears by the act of assembly: Bucher v. Northumberland County, 209 Pa. 618; Hubbard v. Crawford County, 221 Pa. 438; Ford v. School Dist., 121 Pa. 543; School Dist. v. Fuess, 98 Pa. 600; Elliott v. Phila., 75 Pa. 347; Norristown Boro. v. Fitzpatrick, 94 Pa. 121; Grant v. City of Erie, 69 Pa. 420; Symonds v. Clay County Supervisors, 71 Ill. 355; Hollenbeck v. Winnebago County, 95 Ill. 148; Hammond v. Richmond County, 72 Ga. 188; Commissioners v. Mighels, 7 Ohio St. 109; Bailey v. Mayor, etc., of New York, 3 Hill, 531; Fry v. Albemarle County, 86 Va. 195; Field v. Albemarle County, 20 S.E. Repr. 954; Hill v. Boston, 122 Mass. 344; Freeholders of Sussex v. Strader, 18 N.J.L. 108.
Before FELL, C.J., MESTREZAT, ELKIN, STEWART and MOSCHZISKER, JJ.
Admittedly no statutory right of action here exists. If any liability whatever attaches to the county, it must be an implied liability arising out of the performance of a positive or absolute duty enjoined. Was the act of negligence here complained of committed in the performance of such positive or absolute duty? This must be our first inquiry. The negligence alleged was in connection with the repairing a public road within the county, undertaken by the prison board of the county in supposed pursuance of the provisions of the act of May 25, 1907. The act is entitled, "An Act authorizing the employment of male prisoners of the jails and work houses of this Commonwealth upon the public highways of the several counties, and regulating the same; and providing for the establishment of Prison Boards, the purchase of materials and tools, and the employment of deputies, at the expense of the proper county," etc. The title indicates clearly the scope of the act, and the text shows an unmistakable purpose to intrust to the several counties a power in connection with the public roads which they never had before. Certainly prior to the act of June 26, 1895, the counties were without legislative warrant for any interference with the public roads within their respective limits. Such roads were distinctly township roads, and the whole responsibility for their repair and maintenance was imposed on the townships through which they passed, each township being made responsible for so much of any road as was within its own limits. The counties in their corporate capacity had nothing to do with these roads, and had no more right to enter upon them, or do any kind of work thereon than the private individual would have. Such a thing as a county road was unknown until the act of June 26, 1895. This latter act empowered the commissioners of any county, upon the approval of the grand jury and the court of quarter sessions, "to relocate, open, straighten, widen, extend, alter and construct any public road or highway or a section thereof within the county," and provided that any road constructed or improved under its provision should forever thereafter be a county road, the duty of keeping and maintaining the same to devolve upon the county at its expense. Its only relevancy in this connection is to mark the clear distinction between township roads and county roads. It is not pretended that the road in question ever became a county road under the provision of this act. This legislation was followed by the Act of April 15, 1903, P.L. 188, establishing a state highway department, and providing for the application of counties and townships for state aid in highway improvement. This act calls for no discussion since it is in no way here involved. Outside the several acts above mentioned and those relating to the employment of prison labor -- yet to be considered -- we repeat, no legislative warrant can be found for county interference with public roads, or any legislation which imposes any charge upon the counties for their maintenance. The obligation upon the counties to maintain county bridges is a matter wholly apart. The acts we have cited show a marked departure from what had been a settled policy of the state with respect to liability for maintenance of public roads; but they are limited in scope, and impose liability on the county only for such...
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