Newcomb v. Boston Protective Department

• Decision Date: 27 February 1890
• Citation: 151 Mass. 215,24 N.E. 39
• Parties: NEWCOMB v. BOSTON PROTECTIVE DEPARTMENT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 215

24 N.E. 39

NEWCOMB v. BOSTON PROTECTIVE DEPARTMENT.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1890

February 27, 1890

HEADNOTES

COUNSEL

Gaston & Whitney, for plaintiff.

Robert M. Morse and Wm. M. Richardson, for defendant.

OPINION

KNOWLTON J.

It is contended that the defendant is a public charitable corporation, and is not liable for the negligence of its servants. It therefore becomes necessary to consider the act which incorporated it, and the business in which it is engaged.

The statute of 1874, c. 61, created a corporation in which membership was limited to officers, for the time being, of incorporated fire insurance companies or associations, and agents doing the business of fire insurance in the city of Boston. It gave the corporation the power to provide and maintain a corps of men and suitable apparatus for the purpose of discovering and preventing fires, and saving life and property at and after fires. It provided that there should be an annual meeting at which each incorporated fire insurance company or association doing business in the city of Boston whether its officers or agents were members of the defendant corporation or not, should have a right to be represented and to cast one vote; that at such meeting a majority of the whole number represented should determine whether the business of the corporation should be carried on during the ensuing year, and, if so, what should be the maximum amount expended in conducting it; that the whole amount so fixed should be assessed upon all the organizations and agencies engaged in the business of fire insurance in the city of Boston in proportion to the several amounts of premiums returned as received by each; and that such assessments should be collectible in courts of law. The corporation was also empowered to require, semi-annually, a statement to be furnished by all corporations, associations, underwriters and agencies doing the business of fire insurance in the city of Boston of the aggregate amount of premiums received for insuring property situated there during the preceding six months; and a penalty was provided for a failure to make such a statement when required. It appeared in evidence that the corporation has no capital stock, and derives no income from any other source than the assessments provided for in the statute. The directors levy assessments upon each insurance company in proportion to the amount of premiums returned as received by it, except that, for the purpose of determining the amounts of assessments, premiums received for insuring buildings are reckoned at only one-half as much as the premiums received for insuring the contents of buildings. In levying assessments, no distinction is made between companies which are connected with the corporation and those which are not. The evidence was undisputed that it would be impracticable for the men, in attempting to protect property at fires, to make a distinction between that which was insured and that which was not, and that no such distinction was made. The statute gives the...