Mckenna v. Kimball

• Decision Date: 06 January 1888
• Citation: 14 N.E. 789,145 Mass. 555
• Parties: MCKENNA v. KIMBALL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 555

14 N.E. 789

MCKENNA v. KIMBALL et al.

Supreme Judicial Court of Massachusetts, Essex.

January 6, 1888

COUNSEL

William H. Moody and Edmund B. Fuller, for plaintiff.

OPINION

The fact that the defendants (as school committee) passed a vote on the ground, to cause the tree to be felled and to employ Knight to fell the tree, taken together with the fact that the tree was felled by two men other than Knight, although it did not appear by whose orders, tend to show that the felling of the tree was by the defendants' orders, and was proper evidence for the jury to consider on the question of whether the two men who felled the tree were servants or agents of the defendants, and whether they felled it by defendants' orders. Com. v. Peto, 136 Mass. 155; Burgess v Gray, 1 C.B. 578; Reed v. Railroad, 120 Mass 43; Forsythe v. Hooper, 11 Allen, 419; Kimball v. Cushman, 103 Mass. 194. The fact of agency, or whether the relation be that of master and servant, may be proved by circumstantial evidence, and if there is any such evidence, even though slight, it should be submitted to the jury. Reed v. Railroad, ubi supra; Preston v Knight, 120 Mass. 5; Forsythe v. Hooper, ubi supra. The testimony of the plaintiff that he had no warning from any one that the tree was about to fall, and of the two witnesses that they heard a shout of warning after the tree had begun to fall, but none before, together with the evidence that no rope or support of any kind was used, and the testimony as to the roots and the height of the tree, was proper evidence for the jury to consider on the question of negligence. All this evidence, without the least contradiction, was proper and competent evidence to warrant a verdict for the plaintiff. Com. v. Peto, ubi supra; Reed v. Railroad, ubi supra; Forsythe v. Hooper, ubi supra; Burgess v. Gray, ubi supra; Kimball v. Cushman, ubi supra; Preston v. Knight, ubi supra. Does section 46, c. 44, Pub.St., impose upon the school committee the duty of removing trees from the land of the town, although a school-house stands thereon? We argue not. See that section; Gen.St. c. 38, § 36; Rev.St. c. 23, §§ 28, 32. And it does not appear that there was any vote of the town of Bradford in the matter. If the defendants (school committee of the town) did the acts proved, without any authority from the town, or of any duty imposed by statute, they were trespassers, and liable for negligence. Power Co. v. Allen, 120 Mass. 355. If as trespassers, or mere volunteers, the defendants undertook to fell the tree, it was their duty to see that the work was properly executed, so as not to cause injury to any one, and they are liable for any injury caused to any one by their own acts or the acts of their servants. Osborne v. Morgan, 130 Mass. 102; Paper Co. v. Dean, 123 Mass. 267, on page 270; Power Co. v. Allen, ubi supra; Gilmore v. Driscoll, 122 Mass. 208; Kimball v. Cushman, ubi supra; Nowell v. Wright, 3 Allen, 166; Bell v. Josselyn, 3 Gray, 309. If the defendants, (members of the school committee,) in pursuance of a duty imposed upon them by statute, by their servants or agents caused the tree to be felled, and those engaged in the felling were negligent, they are liable for any injury to the plaintiff by reason of such negligence. In the execution of a duty imposed by statute, a person is bound to use his best skill and judgment, and is bound to conduct himself in a skillful manner, and do all any skillful person could reasonably do. When an individual sustains an injury by the misfeasance or negligence of a public officer, the law gives redress to the injured party. A public officer is responsible for his negligence or that of his servants. Nowell v. Wright, ubi supra; Elder v. Bemis, 2 Metc. 599; Adsit v. Brady, 4 Hill, 630; Robinson v. Chamberlain, 34 N.Y. 389; Mersey Docks v. Gibbs, L.R. 1 H.L. 93-113; Sutton v. Clarke, 6 Taunt. 29; Jones v. Bird, 5 Barn. & Ald. 837; White v. Hindley, L.R. 10 Q.B. 223; Blackmore v. Vestry, 9 Q.B.Div. 451. The act complained of was a misfeasance, as distinguished from a nonfeasance; therefore the defendants cannot set up the fact that they were public officers or agents of the town, nor can they justify on the ground that they were performing a duty imposed on them by statute. See opinion of DEWEY, J., in Nowell v. Wright, 3 Allen, 166, on page 168; Bell v. Josselyn, 3 Gray, 309; Jones v. Bird, ubi supra; Hall v. Smith, 2 Bing. 156; Schinotte v. Bumsted, 6 Term R. 646. And it seems that they cannot excuse themselves, as in the case of a person failing to perform a non-statutory duty, by saying that they employed a competent contractor. Gray v. Pullen, 5 Best & S. 970; Hole v. Railway Co., 6 Hurl. & N. 488. In Benton v. Trustees, etc., 140 Mass. 13, 1 N.E. 836, it was held that the defendants were not liable for the negligence of their superintendent. But this case is clearly distinguishable from the case at bar. If the town, instead of leaving the duty to the school committee, had passed a vote to have the tree felled, and had ordered some person to do it, over whom it had control, and whom it might have directed, it would have been liable. Waldron v. Haverhill, 143 Mass. 582, 10 N.E. 481; Tindley v. Salem, 137 Mass. 171-173; Sullivan v. Holyoke, 135 Mass. 273; Deane v. Randolph, 132 Mass. 475; Hawks v. Chareemont, 107 Mass. 414.

Ira A. Abbott and Francis H. Pearl, for defendants.

There was no evidence that the defendants caused the tree to be felled by which the plaintiff claims to have received injury. There was no evidence of due care on the part of the plaintiff, nor lack of it on the part of those who felled the tree. And, assuming that Knight had charge of the felling, it appears that no claim was made that he was not a competent person for the work. If the defendants caused the tree to be felled, it was in the discharge of a duty imposed by law on them as public officers, (Pub.St. c. 44, § 46,) and they are not liable in this action. In Nowell v. Wright, 3 Allen, 166, the question of the liabilities of public officers of different kinds is discussed, (pages 167, 168,) and the incidents of an officer whose possession would be held responsible to third parties are enumerated. They are such as clearly to exclude the office of school committee. The language of the court in Hall v. Smith, 2 Bing. 156, is quoted with approval; namely, that the defendants were not liable for "the misconduct of such as they were obliged to employ," the work having been in that case, as in the one at bar, of such a character that they would not be expected to perform it personally. See also, Callender v. Marsh, 1 Pick. 418, 433; White v. Phillipston, 10 Metc. 108; Williams v. Adams, 3 Allen, 171; Keenan v. Southworth, 110 Mass. 474; Upham v. Marsh, 128 Mass. 546; Johnson v. Dunn, 134 Mass. 522; Lynn v. Adams, 2 Ind. 143; Bartlett v. Crozier, 17 Johns. 439, 450; McKinnon v. Penson, 9 Exch. 609; Boulton v. Crowther, 2 Barn. & C. 703, 708. At most, the defendant would be liable only for wanton disregard of the rights of others, or, possibly, for culpable failure to employ a suitable person to perform the work to be done. But it is not claimed that they were guilty of anything more than negligence, or that Knight was not a suitable person to employ. The case is to be distinguished from Nowell v. Wright, ubi supra, in which the tender of a draw-bridge was held liable on the ground that he was the paid agent of the commonwealth, rather than a public officer in the ordinary sense, and from Power Co. v. Allen, 120 Mass. 352, in which the members of the Cochituate water board were held personally responsible. They were in only a very limited sense public officers, holding their power from, and being removable by, the city council of Boston, while in the acts providing for their appointment, (St.1856, c. 282, and St.1859, c. 186,) the city of Boston is empowered to do certain things "through the agency of a board of commissioners." That the court did not consider that this case came within the ordinary rule relating to public officers is plain, and it was suggested in the opinion that the defendants had their remedy against their principal, the city of Boston.

W. ALLEN, J.

Pub.St c. 44, § 21, provides for the election of a school committee by each town, which shall have the general charge and superintendence of all the public schools of the town. The school committee is a board of public officers whose duties are prescribed by statute, and in the execution of its duties the members do not act as agents of the town, but as public officers in the performance of public duties. Besides the general provision before referred to, the statutes specify various duties required of the committee, and among them the care of school-houses. This duty is absolute in regard to high-school houses. Pub.St. c. 44, § 41; Id. c. 45, § 16. Since the abolition of school-districts by St.1882, c. 219, Pub.St. c. 44, § 46, gives the care of all the school-houses to the committee unless the town...