Murdock Parlor Grate Co. v. Com.

Decision Date21 June 1890
Citation24 N.E. 854,152 Mass. 28
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Reserved case from superior court, Suffolk county.


F.D Ely, for plaintiff.

A.J Waterman, Atty. Gen., and H.C. Bliss, Asst. Atty. Gen., for the Commonwealth.



The question presented by the report in the case at bar is whether, on a petition brought by the plaintiff in the superior court, the commonwealth is responsible, under Pub.St. c. 195, as enlarged by Acts 1887, c. 246, for a tort committed by its servants by negligent management and overloading the floor of an apartment which had been hired by the commonwealth, by which injury was done to another tenant who was in occupation of another apartment in the same building. The commonwealth can be sued in its own courts, undoubtedly, where clear statutory authority for that purpose has been given by the legislature; but, in view of its sovereignty, the intent to confer such authority should be clearly manifested. Railroad Co. v. Com., 127 Mass. 43. It may be assumed that the facts reported would constitute ground for an action of tort against a natural person, had a similar injury been done by his servants. The contention of the defendant is that the statutes cited have not in such a case made the commonwealth liable, in this proceeding. It was held in Wesson v. Com., 144 Mass. 60, 10 N.E. 762, that the jurisdiction given to the superior court by Pub.St. c. 195, § 1, of "all claims against the commonwealth which are founded on contract for the payment of money," did not extend to a claim for damages for a breach of a contract. It was further held in Milford v. Com., 144 Mass. 64, 10 N.E. 516, that such jurisdiction did not extend to the obligation imposed by Pub.St. c. 86, § 26, upon the commonwealth to reimburse the expense incurred by a town in the support of a state pauper. By these decisions the interpretation of the statute remedy was confined to actual contracts for the payment of money. Subsequently to these decisions, St.1887, c. 246, was passed, which gave to the superior court "jurisdiction of all claims against the commonwealth, whether at law or equity," with an exception, not necessary to be considered. In effect, although not in terms, Pub.St. c. 195, § 1, was amended by striking out the words "which are founded on contracts for the payment of money," and in lieu thereof inserting the words, "whether at law or in equity." The title of the amendatory act is "An act concerning the collection of claims against the commonwealth," and it provides that "all claims shall be subject to the same set-off and recoupment as they would be if the commonwealth was a private person." While the words "all claims" may, in their colloquial use, include a demand for damages occasioned by a tort to person or property, in its more proper, judicial sense it is a demand of some matter as of right, made by one person upon another for some particular thing or compensation therefor, or to do, or to forbear to do, something as a matter of duty. Prigg v. Pennsylvania, 16 Pet. 615. In view of the fact that the statute was passed shortly after the decisions in Wesson v. Com., ubi supra, and Milford v. Com., ubi supra, it is reasonable to infer that its object was to extend the jurisdiction of the courts to claims which had not been included in the previous statute, such as those which had been considered in the cases referred to, but not necessarily to claims of a different and distinct character.

There are many obligations of the state not coming within the definitions of a contract, all of which definitions require a consent or agreement of the parties. Where a statute imposes an obligation which is enforced as if it arose ex contractu, there is not a contract, but the obligation arises ex lege. In Milford v. Com., above cited, the claim was of this class. The amended statute was intended to cover claims of this class not arising under contract, those of a breach of contract such as the subject of the suit in Wesson v. Com., contracts other than those for the payment of money, and perhaps other claims not convenient now to enumerate. This gives to the statute a full and sufficient meaning without holding, as the plaintiff urges, that a remedy in the nature of an action of tort against the commonwealth is afforded thereby for neglect or misfeasance of its officers or servants while engaged in the performance of their duties. The object of the statute cannot have been to create a new class of claims for which a sovereignty has never been held responsible, and to impose a liability therefor, but to provide a convenient tribunal for the determination of claims of the character which civilized governments have always recognized, although the satisfaction of them has been usually sought by direct appeal to the sovereign, or, in our system of government, through the legislature. It is therefore to be considered whether a demand or claim for an injury done or tort committed by a public servant in the performance of his duty is one for which a liability has been held to have been incurred by governments, even if there existed no tribunal competent judicially to pass upon it.

States have always found it necessary to take and use the property of their citizens for the purposes of their government. They have assumed various responsibilities on behalf of their citizens or others. They have, also, always been parties to contracts for the borrowing of money, the purchase of property, the...

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