Nicholson v. City of Detroit
| Decision Date | 07 January 1902 |
| Court | Michigan Supreme Court |
| Parties | NICHOLSON v. CITY OF DETROIT. |
Error to circuit court, Wayne county; William L. Carpenter, Judge.
Action by Ada Nicholson, as administratrix of the estate of Alfred Cope, deceased, against the city of Detroit. From a judgment for defendant, plaintiff brings error. Affirmed.
Alfred Lucking and Howard B. Bloomer, for appellant.
Timothy E. Tarsney, for appellee.
The plaintiff is administratrix of one Alfred Cope, and commenced this action by declaration, under the statute, to recover for the benefit of Cope's widow and children, for the negligent causing of his death. The declaration is in two counts, the first of which alleges, in substance, that the city was possessed in 1894 of a lot containing 40 acres of land, upon which was an old building that had been used by the defendant as a hospital for contagious diseases,--particularly smallpox. In November, 1894, the defendant began the erection of a new building designed for a similar use, and employed the plaintiff's intestate, who was a carpenter, to work upon the same. The new building was located in close proximity to the old one, and it is alleged that said old building and the surrounding grounds were infected with smallpox germs, making it dangerous for any person to be in or upon them. The plaintiff's intestate was attacked by smallpox, and after an illness of a month's duration, died from the disease. It is alleged that the defendant was negligent in not using reasonable care to furnish him a safe place to work, and in not warning him against said dangers, and in not constructing the new building at a greater distance from the old one, and in not causing the old building and the ground to be disinfected. The second count alleges that the deceased was employed to tear down the old building, and that while so engaged he was exposed to the smallpox, and by reason thereof was seized with said disease and died. This count was otherwise similar to the first, except that it alleges that defendant assured the deceased that it was safe for him to work upon and about said building. A demurrer was interposed which upon the hearing was sustained; and plaintiff not having amended the declaration within the time prescribed by the order, judgment followed, and the plaintiff has brought the case to this court by writ of error. The only question presented by counsel is whether a municipality is liable for the injury or death of an employ� resulting from circumstances like those alleged, and therefore it is the only one discussed.
The law imposes upon the city the duty of taking measures for the preservation of the public health, through a board of health whose powers and duties are statutory. Sections 376-381, Detroit Charter 1893. See, also, Comp. Laws 1897, �� 4410-4467. Section 4448 makes it a duty of the board of health of the township to provide a hospital or place of reception wherever smallpox, or any other disease dangerous to public health, shall break out in any township, and section 4444 authorizes the establishment of permanent hospitals by the townships, while section 4419 makes the law applicable to cities; and it seems to be admitted that the city acted under these statutes.
It is the well-settled rule that the state is not liable to private persons who suffer injuries through the negligence of its officers,--and the rule extends to townships and cities,--while in the performance of state functions, imposed upon them by law. This subject is fully discussed in City of Detroit v. Blackeby, 21 Mich. 84, 4 Am. Rep. 450. It was there held that 'cities are governmental agencies, and that their officers are in no such sense municipal agents; that their negligence is the neglect of the municipality; nor will their misconduct be chargeable against them unless the act complained of be either authorized or ratified.' And in a large number of cases it has been held that there is no such liability on the part of such governmental agency unless it has been inposed by statute, and in such case it is necessarily limited by the statute. Commissioners v. Martin, 4 Mich. 557, 69 Am. Dec. 333; Leoni Tp. v. Taylor, 20 Mich. 148; Larkin v. Saginaw Co., 11 Mich. 88, 82 Am. Dec. 63; Fowle v. Alexander Common Council, 3 Pet. 398, 7 L.Ed. 719; Black v. City of Columbia, 45 Am. Rep. 785; Gilboy v. City of Detroit, 115 Mich. 121, 73 N.W. 128; Maxmilian v. Mayor, etc., 62 N.Y. 160, 20 Am. Rep. 468; Webb v. Board, 116 Mich. 516, 74 N.W. 734, 72 Am. St. Rep. 541; Carrington v. City of St. Louis, 89 Mo. 209, 1 S.W. 240, 58 Am. Rep. 108; Eastman v. Meredith, 36 N.H. 298, 72 Am. Dec. 302.
Counsel for the plaintiff seem to admit the general rule that a municipality is not liable for injuries received through the negligence of its officers, while acting in the capacity of governmental agents. They allege, however, that the city owned the premises, and contracted with the deceased, and owed the duty of warning him against hidden dangers; that the city is subject to the same responsibility to warn those upon its land against pitfalls that other landowners are subject to; and that the obligation under its contract for constructing a house upon its land entitles its employ�s to a safe place to work, as a contract between private persons does. There is some plausibility in the suggestion, but we think it fallacious. In a moral sense, those acting for the state owe the same duty toward persons employed upon its behalf as that due from the citizen. They should also be as careful to provide safe appliances and a safe place for employ�s, as a private person should. But if they do not, the sufferer is remediless, as against the state, for the reason that it has provided no remedy, although the state itself own the land when the injury occurred, and make the contract of employment. It is an open question how far it is wise or just to subject citizens to taxation to pay for injuries caused by the negligence of public officers. Such officers are usually the representatives of the injured person as well as of other taxpayers. It is as much his duty to select careful and prudent officers as it is that of the taxpayer who is called upon to help pay for his hurt, who, perhaps, may be a woman or child, and has had no voice in the selection of the negligent officer, and therefore no duty in the premises. The rule of public liability in such cases offers such opportunities and inducements for abuse that there is some ground for doubting the expediency of relieving individuals at public expense in any such case; and as has been said, it is only in cases where the legislature has authorized it that the obligation can be enforced against the public, instead of the individual to whose misconduct the injury is due, and who should, in justice, be primarily liable in all cases. As said by Mr. Justice Campbell in O'Leary v. Board, 79 Mich. 286, 44 N.W. 610, 7 L. R. A. 172, 19 Am. St. Rep. 173: The action of the city in obtaining and owning the land and erecting the hospital is as much an act of a governmental agent as the transportation of a patient thereto and his treatment therein would be. It is land owned for governmental purposes, by governmental authority, by a governmental agency, it is true, but not for the private purposes of the municipality as such, and for purposes in which the state has no interest. The title to the land is in the city, but so it would be were the interest merely a leasehold for the shortest practicable period. It is inconceivable that chabnges made upon premises owned by the city under this statute would stand upon any other footing than premises rented for a month by the city for a similar purpose. In either instance it might be necessary to adapt the premises to the purposes contemplated by law, and in both instances it might be necessary to employ men for the purpose. In either case, if done by the board of health, this would inconceivable that changes made upon premises duty, and the city would be acting solely in the capacity of governmental agent. Therefore the doctrine of respondeat superior would have no application. It was said by Chief Justice Montgomery in Murray v. Village of Grass Lake, 125 Mich. 2, 83 N.W. 995: ...
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