Moynihan v. Todd

• Decision Date: 20 May 1905
• Citation: 188 Mass. 301,74 N.E. 367
• Parties: MOYNIHAN et al. TOOMEY v. TODD. TOOMEY v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

188 Mass. 301

74 N.E. 367

MOYNIHAN et al. TOOMEY v. TODD. TOOMEY v. SAME.

Supreme Judicial Court of Massachusetts, Essex.

May 20, 1905

COUNSEL

Horace I. Bartlett and Robt. E. Burke, for plaintiffs.

Henry P. Moulton and Geo. B. Blodgette, for defendant.

OPINION

KNOWLTON C.J.

These three actions are founded upon the alleged negligence of the defendant in carelessly blasting a rock in a highway, whereby the plaintiffs Toomey and Abbie M. Moynihan were struck by pieces of rock and injured, and the plaintiff Timothy Moynihan, husband of Abbie, was put to expense on account of his wife's injury. It was admitted that the injured plaintiffs were in the exercise of due care. The defendant was superintendent of streets for the town of Rowley, and at the time of the accident he was repairing a street, with others working under his direction and subject to his control. He directed that a boulder be removed by blasting and just before the explosion he went away a short distance from it to be beyond the reach of the broken rock that might be thrown out by the blast. The evidence would have warranted a finding that, if there was negligence in blasting the rock he was legally responsible for the consequences of it, unless he was relieved from liability by the fact that he was acting as a public officer. The jury might have found that he was personally negligent, and it is plain from the testimony that he had the management and control of the repairs then in progress on the highway, and that the men who were employed by him on the different parts of the work acted under his direction. Elder v. Bemis, 2 Metc. 599-605; Bickford v. Richards, 154 Mass. 163, 27 N.E. 1014, 26 Am. St. Rep. 224; Delory v. Blodgett, 185 Mass. 126, 69 N.E. 1078, 64 L. R. A. 114, and cases cited.

We come now to the question whether he was exempted from liability by the rules of law applicable to public officers. Under the statute which authorizes the appointment of a superintendent of streets in a town he was 'to have the same powers and be subject to the same duties, liabilities and penalties which have been imposed upon surveyors of highways and road commissioners.' St. 1889, p. 843, c. 98; St. 1893, pp 1284, 1285, c. 423, §§ 25, 26; St. 1894, p. 29, c. 17; Rev Laws, c. 25, §§ 85, 86. These statutes, however, do not make this officer liable to a fine for nonacceptance of his appointment to office by the selectmen, as highway surveyors and some other town officers are for a neglect to take the oath of office after an election in town meeting. See Rev. Laws, c. 25, § 97. Although the language of some of the decisions suggests a distinction between the performance of public duties voluntarily undertaken and the performance of them under the compulsion of a statute, we shall assume in favor of the defendant, for the purposes of this decision, that the difference is immaterial, and shall treat the defendant as if he were a highway surveyor. See Nowell v. Wright, 3 Allen, 166, 80 Am. Dec. 62; Tindley v. Salem, 137 Mass. 171-175, 50 Am. Rep. 289. A highway surveyor is not liable to an action at common law in Massachusetts for negligently omitting to perform the duties of his office, or for performing them in such a negligent manner as to fail to give the public the benefits which they ought to receive in the enjoyment of good roads. His only liability for this kind of negligence is statutory. Rev. Laws, c. 25, § 82; Callendar v. Marsh, 1 Pick. 418; Elder v. Bemis, 2 Metc. 599; Benjamin v. Wheeler, 15 Gray, 486; White v. Phillipston, 10 Metc. 108; Bartlett v. Crosier, 17 Johns. 439, 8 Am. Dec. 428. The principal ground on which public officers find exemption from liability for negligence in the performance of their official duties in certain cases is the same as that which relieves cities and towns and other agencies of the government from a liability to individuals for a failure to perform similar duties. Unless under some special statutory provision, a public officer can have no greater exemption from such a liability than is granted to a city or town which neglects to perform the public duties imposed upon it. Hill v. Boston, 122 Mass. 344-361, 23 Am. Rep. 332. The subject of the liability of officers and agencies of government for negligence in the performance of public duties was considered at great length in Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332, with an elaborate review of the cases, both English and American. The rule adopted in that case is the same as previously had existed in England, and was understood to be then in force there. Following this rule, it has always been held in the American courts that an agency of government or a public officer, while performing a duty imposed solely for the benefit of the public, is not liable for a mere failure to do that which is required by the statute. Negligence that is nothing more than omission or nonfeasance creates no liability. Russell v. Men of Devon, 2 T. R. 667; Young v. Davis, 7 H. & N. 760; Cowley v. Newmarket Local Board (1892) A. C. 345; Municipal County of Sydney v. Bourke (1895) A. C. 433; Tindley v. Salem, 137 Mass. 171, 50 Am. Rep. 289; Mahoney v. Boston, 171 Mass. 427, 50 N.E. 939; Sampson v. Boston, 161 Mass. 288, 37 N.E. 177; Maximillian v. Mayor, etc., 62 N.Y. 160, 20 Am. Rep. 468; Eastman v. Meredith, 36 N.H. 284, 72 Am. Dec. 302; Brown v. Vinalhaven, 65 Me. 402, 20 Am. Rep. 709; Colwell v. Waterbury, 74 Conn. 568, 51 A. 530, 57 L. R. A. 218; Condict v. Jersey City, 46 N. J. Law, 157; Nicholson v. Detroit, 129 Mich. 246, 88 N.W. 695, 56 L. R. A. 601; Kuehn v. Milwaukee, 92 Wis. 263, 65 N.W. 1030; Ogg v. Lansing, 35 Iowa, 495, 14 Am. Rep. 499; Bryant v. St. Paul, 33 Minn. 289, 23 N.W. 220, 53 Am. Rep. 31; Summers v. Commissioners, 103 Ind. 262, 2 N.E. 725, 53 Am. Rep. 512; Love v. Atlanta, 95 Ga. 129, 22 S.E. 29, 51 Am. St. Rep. 64; Sievers v. San Francisco, 115 Cal. 648, 47 P. 687, 56 Am. St. Rep. 153; Galveston v. Posnainsky, 62 Tex. 120, 129, 131, 50 Am. Rep. 517; Conelly v. Nashville, 100 Tenn. 262, 46 S.W. 565. Prior to the decisions in Mersey Docks v. Gibbs, L. R. 1 H. L. 93, and Foreman v. Mayor of Canterbury, L. R. 6 Q. B. 214, which overruled the case of Holliday v. St. Leonards, Shore Ditch, 11 C. B. (N. S.) 192, it was held in England that for negligent acts of misfeasance by the servants or agents of a municipality or a public officer performing duties strictly public there was no liability upon the employer, on the ground that the doctrine respondeat superior does not apply to the servants of one who is acting only as a representative of the government for the benefit of the public. Holliday v. St. Leonards, Shore Ditch, ubi supra; Duncan v. Findlater, 6 Cl. & Find. 894-903; Hall v. Smith, 2 Bing. 156-159. This is the rule generally in the American courts. Sampson v. Boston, 161 Mass. 288, 37 N.E. 177; Curran v. Boston, 151 Mass. 505, 24 N.E. 781, 8 L. R. A. 243, 21 Am. St. Rep. 465; Mahoney v. Boston, 171 Mass. 427, 50 N.E. 939; Kelley v. Boston, 186 Mass. 165, 71 N.E. 299, 66 L. R. A. 429. See, also, cases above cited. But now the law in England seems to hold agencies of the government liable for injuries from acts of misfeasance committed by servants or agents engaged in a public work. See Foreman v. Mayor of Canterbury, L. R. 6 Q. B. 214. In this commonwealth, in the course of years, the application of the law in regard to the liability of municipalities and public officers for negligence has produced a variety of statements, and perhaps some conflict of decision. While we never have adopted the present English rule establishing a general liability of the master for the misfeasance of his servants in this class of cases, and have sometimes stated rather broadly a general exemption from liability for negligence while performing public work, it has repeatedly been intimated that a liability for individual and personal acts of misfeasance exists in these cases as well as others. This was expressly stated in Howard v. Worcester, 153 Mass. 426-428, 27 N.E. 11, 12 L. R. A. 160, 25 Am. St. Rep. 651, and the reasons given for the decision in McKenna v. Kimball, 145 Mass. 555, 14 N.E. 789, lead to a similar result. In Walcott v. Swampscott, 1 Allen, 101, Barney v. Lowell, 98 Mass. 570, and Fisher v. Boston, 104 Mass. 87, 6 Am. Rep. 196, which were suits against the town and the cities for work done by a public officer, it was held that the doctrine respondeat superior does not apply. In Butterfield v. Boston, 148 Mass. 544, 545, 20 N.E. 113, 2 L. R. A. 447, the injury was caused by a negligent act of a gateman or a draw tender, and Chief Justice Morton, in the opinion of the court, which held that an action could not be maintained against the city, said that these persons might be individually liable. In Nowell v. Wright, 3 Allen, 166, 80 Am. Dec. 62, the action was against the tender of a drawbridge, an officer appointed by the Governor of the commonwealth much as superintendents of streets are appointed by the selectmen of towns; and, the injury having been caused by his personal negligence in a positive act, which thus became a misfeasance, he was held liable. See, also, Young v. Davis, 7 H. & N. 760-771; Foreman v. Mayor of Canterbury, L. R. 6 Q. B. 214, Duncan v. Findlater, 6 Cl. & Find. 894-903; Municipality of Pictou v. Geldert (1893) A. C. 433-441; O'Leary v. Board of Fire Commissioners, 79 Mich. 281-286, 44 N.W. 608, 7 L. R. A. 170, 19 Am. St. Rep. 169; Nicholson v. Detroit, 129 Mich. 246-258, 88 N.W. 695, 56 L. R. A. 601. We are of opinion that the principle which underlies the rule that public officers and other agencies of government are not liable for negligence in the performance of public duties goes no further than to relieve them from liability for nonfeasance and...