Newton v. Town of Hamden

• Decision Date: 30 July 1906
• Citation: 79 Conn. 237,64 A. 229
• Court: Connecticut Supreme Court
• Parties: NEWTON v. TOWN OF HAMDEN.

64 A. 229

79 Conn. 237

NEWTON

v. TOWN OF HAMDEN.

Supreme Court of Errors of Connecticut.

July 30, 1906.

Appeal from Superior Court, New Haven County; George W. Wheeler, Judge.

Action by Henry G. Newton against the town of Hamden. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed and remanded.

Harrison Hewitt and Charles F. Clarke, for appellant. James H. Webb, for appellee.

PRENTICE, J. The plaintiff sues to recover for his services rendered and expenses incurred as an attorney at law in the defense of an action in the courts of this state. To his substituted complaint as it stood after certain of its allegations had been expunged upon motion, a demurrer was filed and sustained. This action of the court in sustaining the demurrer is assigned as error. The demurrer in terms specifies various reasons of demurrer. In substance, however, these reasons resolve themselves into two, to wit: (1) Because it appears that the services and expenses for which recovery was sought were of such a character that the defendant could not lawfully assume to pay therefor; and (2) because it did not appear that the defendant had ever, by its own action, or by that of any authorized agency, employed the plaintiff or agreed to pay him, or assumed to do so by the approval of his bill rendered. The action which the plaintiff appeared to defend was one, as the complaint discloses, which was brought by one Maud Hough, a former teacher in one of the public schools maintained by the defendant herein as a consolidated school district and against one Cook, a member of the town school committee, one Clarke, another member of said committee and an acting school visitor, and one Foote, an acting school visitor not a member of the committee. It alleged a conspiracy between said three defendants to force the plaintiff out of her position as teacher in said school. The facts which furnished the foundation for this action are in the present complaint in substance alleged to have been that, rumors derogatory to the moral fitness of said teacher, and charging her with misconduct in the school, having come to the ears of said Cook, Clarke, and Foote, the latter two, as acting school visitors, made inquiries, and visited said school for the purposes of investigation; that as the result of these inquiries and that investigation, and notwithstanding her denial, they became satisfied that she had misconducted the school as charged; that they then informed her of that fact, and, in view of it and her denial, suggested a further investigation or her resignation; and that she thereupon resigned. It is alleged that the action which said Cook, Clarke, and Foote took in the premises was taken in good faith and in the performance of their duties as school officers, and that it was pleaded in defense of said action that it was so taken.

The first question presented is whether or not this defendant could lawfully indemnify the defendants in a suit so brought for the expense incurred by them in its defense or, what amounts to the same thing, assume the burden of its defense, Cushing v. Stoughton, 6 Cush. (Mass.) 389; Cullen v. Carthage, 103 Ind. 196, 2 N. E. 571, 53 Am. Rep. 504. The law regulating this subject is well settled in this jurisdiction. "The officer or agent of a municipal corporation may be legally indemnified, provided he has acted in good faith in the discharge of his official duty in a matter in which the corporation has an interest and with respect to a duty imposed or authorized by law." Gregory v. Bridgeport, 41 Conn. 74, 84, 19 Am. Rep. 458. In Hotchkiss v. Plunkett, 60 Conn. 230, 234, 22 Atl. 535, the same principle is restated, but in different language more clearly bringing out the three conditions which must coexist, to wit, first, that the officer must have been acting in a matter in which the corporation had an interest; second, that he must have been acting in the discharge of a duty imposed or authorized by law; and, third, that he must have acted in good faith. We have but to apply these tests to the facts alleged in the complaint. The defendant had assumed the control of the public schools within its limits. By virtue of such assumption it had come under a duty imposed by statute. This duty involved the maintenance of proper schools according to certain prescribed standards, and under certain prescribed conditions. This duty of maintenance and the financial burden incident thereto included that of paying the salaries of teachers. Maud Hough, therefore, before her resignation was in the pay of the town and in the conduct of a public institution whose support came from the town treasury....