Moulton v. Inhabitants of Scarborough

• Decision Date: 28 June 1880
• Citation: 71 Me. 267
• Parties: HANNAH MOULTON v. INHABITANTS OF SCARBOROUGH.
• Court: Maine Supreme Court

71 Me. 267

HANNAH MOULTON v. INHABITANTS OF SCARBOROUGH.

Supreme Judicial Court of Maine.

June 28, 1880

ON EXCEPTIONS.

This was an action of the case, for that the said defendants at said Scarborough, on the twenty-ninth day of December, A. D eighteen hundred and seventy-seven, and for a long time prior thereto, were the owners and possessed of a certain ram, of vicious disposition and accustomed to attack and butt persons, all which was then and there well known to the defendants; yet the defendants neglecting their duty in the premises, and not exercising proper and suitable care and restraint over said ram, carelessly and negligently, on said twenty-ninth day of December, allowed him to be loose and run at large, to the danger of the citizens of the State; and being so wrongfully and negligently at large and without any keeper, or other restraint said ram on said day came upon the premises of one Henry Moulton in said Scarborough, where the plaintiff then lawfully was, and while she was in the front yard of said Henry's premises and near the house, and in the exercise of due and proper care, said ram suddenly attacked and struck the plaintiff with great force and threw her violently upon the ground, breaking her left hip, and greatly jarring and bruising her whole person, by reason of which the plaintiff has ever since been confined to her bed, and has constantly suffered great pain and been put to great expense for doctoring and nursing, and been unable to do work as she formerly had done; and is not likely ever to recover from said injury. Whereby an action hath accrued to said plaintiff to have and recover of said defendants, compensation for her said injuries, which she alleges is.

The defendant demurred to the declaration, and the same being joined, it was overruled pro forma.

S C. Strout and H. W. Gage, for the plaintiff, cited: Marble v. Ross, 124 Mass. 44; Jewett v. Gage, 55 Me. 538; Woodcock v. Calais, 66 Me. 236; Hawks v. Charlemont, 107 Mass. 414; Newert v. Boston, 120 Mass. 338; C. & O. Canal v. Portland, 62 Me. 504.

A. F. Moulton, for the defendants, contended that:--

1. A town is a quasi corporation, with powers and duties limited and defined by statute, and, in general, no right of action exists against it unless given by statute.

2. A town cannot own property, except when necessary to aid in the performance of duties imposed upon it by law. For a town to be " the owner and possessor of a ram," otherwise than in the line of its statutory duties, is ultra vires.

3. In the performance of its statutory duties, a town is not liable to an individual for negligence, and no action can be maintained unless allowed by statute.

And he cited: Hooper v. Emery, 14 Me. 377; Westbrook v. Deering, 63 Me. 231; Hamilton Co. v. Mighills, 7 Ohio St. 109; Dillon on Mun. Corp. § 766 et seq. ; Shearman & Redfield on Negligence (2d ed.), § 118, and cases cited; Gallatin v. Loucks, 21 Barb. 578; Russell v. Men of Devon, 2 T. R. 667; Mitchell v. Rockland, 52 Me. 118; Thayer v. Boston, 19 Pick. 511; 66 Me. 314; Harvey v. Rochester, 35 Barb. 177; State v. Great Works, & c. 20 Me. 41; Cushing v. Bedford, 125 Mass. 526; Rounds v. Bangor, 46 Me. 541; Small v. Danville, 51 Me. 359; R. S., c. 3, § 35; 29 Conn. 363; Hood v. Lynn, 1 Allen 103; Girard Will Case, 2 How. 127; Jackson v. Hartwell, 8 Johns. 330; 2 Kent's Com. 283; Sutton v. Cole, 3 Pick. 232; Worcester v. Eaton, 13 Mass. 378; McCarty v. Orphan Asylum, 9 Cowan 437; Mayor v. Gloucester, 1 H. L. 285; Mersey Docks v. Gibbs, Law Rep. 1 H. L. 93, 119; (11 H. L. 713); Jones v. New Haven, 34 Conn. 1; Hill v. Boston, 122 Mass. 344; Mills v. Brooklyn, 32 N. Y. (Appeals) 489; Eastman v. Meredith, 36 N.H. 284; Bigelow v. Randolph, 14 Gray 541; Walcott v. Swampscott, 1 Allen 101; Morgan v. Hallowell, 57 Me. 375; Dayton v. Pease, 4 Ohio St. 80; Angell & Ames on Corp. (9th ed.) § 629.

LIBBEY J.

This case comes before us on general demurrer to the declaration. It is for negligence of the defendant in not taking proper care of and restraining a vicious ram, owned and kept by the town, by reason whereof the plaintiff was attacked by the ram and seriously injured.

It is not claimed in support of the demurrer that the declaration is defective; but it is contended in behalf of the defendants, that the town had no legal authority to own and keep a ram; that the act was ultra vires, and that, therefore, the town is not liable.

It is admitted, however, by the defendants' counsel, that if the town could legally own and keep the ram for any corporate purpose, for profit and gain, then it rests under the same liability as a person or private corporation for its proper care and control. This is the well settled rule of law. Small v. Danville, 51 Me. 359; Woodcock v. Calais, 66 Me. 234; Oliver v. Worcester, 102 Mass. 489; Eastman v. Meredith, 36 N.H. 295; Mersey Docks Trustees v. Gibbs, 11 H. L. Cas. 687; S. C. Law Rep. 1 H. L. 93; Dillon on Mun. Corp. § 780, and cases cited in note.

By the statutes of this State it is the duty of a town to support paupers having a legal settlement therein. It is not its duty to own and carry...