Kerr v. Inhabitants of Brookline

• Decision Date: 02 March 1911
• Citation: 208 Mass. 190,94 N.E. 257
• Parties: KERR v. INHABITANTS OF BROOKLINE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

208 Mass. 190

94 N.E. 257

KERR v. INHABITANTS OF BROOKLINE.

Supreme Judicial Court of Massachusetts, Norfolk.

March 2, 1911

COUNSEL

Frank K. Linscott, Whipple, Sears & Ogden, and Edwin M. Brooks, for appellant.

Charles A. Williams, for appellee.

OPINION

KNOWLTON C.J.

This case comes before us on the plaintiff's appeal from an order sustaining a demurrer to her declaration and an order of judgment for the defendant. The declaration contains numerous counts, which set forth in different ways her claim against the town for an injury received from being struck by a rocket which was fired from a public playground as a part of the celebration of the 4th day of July. In most of its features the case is like Tindley v. Salem, 137 Mass. 171, 50 Am. Rep. 289, and is covered by it. The giving of the display of fireworks by the town was under the same statutory authority as was considered in the case cited. The fact that the place where the rocket was set off was a public playground, instead of a public square of a coty, does not affect the question of legal liability. The reason of the decision was that the work in which the city was engaged was conducted solely in the public interest and for the general benefit. The case was therefore held to be governed by Hill v. Boston, 122 Mass. 344, 23 Am Rep. 332. A reason lying deeper still is that a city can act only by officers, agents or servants. If there is negligence in the management of the business or in doing the work, it is that of the person or persons who represent the city. While it is reasonable that these individuals should be held liable for their negligence to any one injured by it (see Moynihan v. Todd, 188 Mass. 301, 74 N.E. 367, 108 Am. St. Rep. 473), it is not thought to be reasonable that a municipality or a public officer, who is engaged upon a public work conducted for the benefit of the people and not for gain, should be held liable for the negligence of his servants or agents under the doctrine respondeat superior. The principle has been applied and discussed in other cases. Moynihan v. Todd, ubi supra; Howard v. Worcester, 153 Mass. 426, 27 N.E. 11, 12 L. R. A. 160, 25 Am. St. Rep 651; Harrington v. Worcester, 186 Mass. 594, 72 N.E. 326; Lincoln v. Boston, 148 Mass. 578, 20 N.E. 329, 3 L. R. A. 257, 12 Am. St. Rep. 601. The principles enunciated in these decisions entirely cover the present case in every aspect of it that involves alleged negligence at common law.

The plaintiff contends that she can recover as for the maintenance of a nuisance. It is strongly intimated in Lincoln v. Boston, 148 Mass. 578-580, 20 N.E. 329 (3 L. R. A. 257, 12 Am. St. Rep. 601), that a landowner is not 'liable for a transitory act of a third person, the scope of which cannot be enlarged by calling it a public nuisance and which has in it no element of continuing use of the real estate.' In the present case the town is not the owner of the playground in any ordinary sense. The property is held under the statute, solely for a public use. Rev. Laws, c. 28, § 19; St. 1910, c. 508. Then, too, the setting off of fireworks on a single occasion does not create any permanent or continuing condition of the real estate, such as creates a liability against a landowner, or a city or town in control of lands, in such cases as Anthony v. Adams, 1...