Miller v. Clarke

• Citation: 129 A. 606
• Decision Date: 24 June 1925
• Docket Number: No. 6005-6008.,6005-6008.
• Parties: MILLER et al. v. CLARKE, City Treasurer, and three other cases.
• Court: United States State Supreme Court of Rhode Island

129 A. 606

MILLER et al.

v. CLARKE, City Treasurer, and three other cases.

No. 6005-6008.

Supreme Court of Rhode Island.

June 24, 1925.

Exceptions from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

Four separate actions, by Goeffrey Miller and others, by Cesare Marionelli, by Guiseppe Gemma and others, and by Tomasso Lanzi, all against Walter L. Clarke, City Treasurer of Providence. Demurrer to declaration in each case was sustained, and plaintiffs in each case bring exceptions. In each case exceptions overruled, arid case remitted for further proceedings.

George F. O'Shaunessy and Peter Leo Cannon, both of Providence, for plaintiffs.

Elmer S. Chace, City Sol., and Herbert E. Eklund, Asst. City Sol., both of Providence, for defendant.

SWEETLAND, C. J. Each of the above-entitled causes is an action of trespass on the case, brought against the city treasurer of Providence to recover damages for injuries to the plaintiff's property alleged to have resulted from the wrongful act of the city of Providence in granting a license to certain persons, carrying on business under the style of the Rhode Island Fireworks Company, to manufacture and keep in their possession in the city of Providence fireworks, powder, bombs, and other high explosives in circumstances amounting to a nuisance. Each case is before us upon the plaintiff's exception to the ruling of a justice of the superior court sustaining a demurrer to the declaration.

The declaration in each case alleges substantially that the city of Providence, on July 13, 1922, acting "through its duly authorized officials and agents," licensed said persons, carrying on business as the Fireworks Company, to keep, store, and manufacture fireworks and high explosives at their place of business, which was located in a district of Providence near to the dwelling house of the plaintiff and to other dwelling houses, and also to a public street, and that on May 26, 1923, an explosion occurred on the premises of the Fireworks Company, which explosion caused serious injury to the dwelling house and to the furniture of the plaintiff. The principal ground of demurrer is that the declaration does not state a cause of action against the defendant municipality. If, in the circumstances, it can properly be said that the act complained of was that of an agent of the defendant, it was in regulation for the public safety of a business incidental to which, if not conducted with care, was the possibility of injury to those engaged in it, and to others in its neighborhood. Such regulation was not undertaken for the advantage of the city in its corporate capacity, but was an exercise of a public or governmental function.

A municipality, such as the city of Providence, acts in a dual capacity, first as a corporate individual. In the exercise of its powers as such corporation it is generally subject to civil liability for the omission, negligence, or misconduct of its officers, servants, and agents. Second, the city acts in a public character, from which it derives no corporate advantage. This court has approved and applied the generally recognized principle that in the exercise of such public or governmental function a municipality is not subject to civil liability, unless the same is specifically imposed by statute. Wixon v. Newport, 13 R. I. 454, 43 Am. Rep. 35; Blair v. Granger, 24 R. I. 17, 51 A. 1042. Such was also the real ground of the decision in Hassett v. Thurston, 43 R. I. 47, 110 A. 394.

Each of the several plaintiffs seeks to avoid the effect of an application of the legal principle just stated by an allegation in the declaration that, in authorizing the conduct of the business of said Fireworks Company near the dwelling house of the plaintiff, the officials of the city were "licensing a nuisance." For the soundness of this position plaintiff relies upon the authority of certain cases from other jurisdictions, in which courts have held that, although legal liability has not been specially imposed by statute, a municipality is subject nevertheless to a private action for damages resulting from its public or governmental acts, when such acts constitute a nuisance. It has been held that in creating a nuisance a municipality cannot be regarded as exercising governmental functions, but is simply...