Orlando v. City of Brockton

• Decision Date: 11 September 1936
• Citation: 3 N.E.2d 794,295 Mass. 205
• Parties: ORLANDO v. CITY OF BROCKTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 205

3 N.E.2d 794

ORLANDO v. CITY OF BROCKTON.

Supreme Judicial Court of Massachusetts, Plymouth.

September 11, 1936

Action of tort by Anthony Orlando against the City of Brockton. From an order of the Appellate Division dismissing a report of the trial judge, who found for the defendant, of his refusal to give rulings requested by plaintiff, the plaintiff appeals.

Affirmed.

Appeal from Appellate Division of District Court Southern District; Murphy, Judge.

W. F Hallisey, of Brockton, for appellant.

L. E. Crowley, City Sol., of Brockton, for appellee.

DONAHUE, Justice.

The board of public welfare of the city of Brockton, consisting of three members elected by the city council, had the care and oversight of poor and indigent persons for whose relief and support the city was chargeable. G.L. (Ter.Ed.) c. 117, §§ 1, 2. The city provided an almshouse (the statutory name of which is infirmary, G.L.[Ter.Ed.] c. 47), and a farm connected therewith for the relief and support of the poor and indigent under the supervision of the board of public welfare. It was also the duty of the board in its discretion under the statute to provide relief for poor and needy persons outside the almshouse and farm.

The plaintiff, who was unemployed, applied to the board of public welfare for relief. He asked for an order which would permit him to purchase food at a grocery store to the amount of five dollars, and was told to report at the city farm on a day stated. He did so and with others was driven to Field Park, which was owned by the city, in an automobile truck registered in the name of the board of public welfare and operated by one of its employees. He worked all day carrying wood from the park to a road. At the close of the day he and other men at the direction of the driver climbed upon the rear of the truck on which was a load of wood tied with a rope. The plaintiff was obliged to stand on the rear of the truck holding on to the rope. According to the record the ‘ driver started down an incline at a speed from five to twenty-five miles per hour as testified to by witnesses and drove into deep frozen ruts causing the truck to sway and the wood to shift. The driver continued on with the truck swaying and the wood shifting striking the plaintiff throwing him off the truck, causing serious injuries. The driver * * * knew the plaintiff with others were standing on the truck as he had directed them to do so and knew the character of the land and location of the ruts as he had driven over them before.'

A judge of a district court found for the defendant and reported his refusal to give certain rulings requested by the plaintiff to the Appellate Division and there the report was ordered dismissed. The evidence would warrant the finding that the driver was negligent and the plaintiff in the exercise of due care. While the report does not specifically state that the judge so found it seems to indicate that he did and that his finding for the defendant was based on the ground that the defendant city was not liable for any negligence of the employee of the board of public welfare in his operation of the truck. The defendant's brief states that ‘ The question of law involved in this action is whether or not in the collection of the wood at Field Park and transporting the same to the City Farm, the Board of Public Welfare were acting as agents of the defendant.’ The plaintiff in his brief states the questions presented to be whether the business in which the driver was employed was such that engaging in it would subject the city to liability for negligence in its conducting it and whether the driver was acting as agent for the board of public welfare merely in the performance of a public duty. We here consider the case on the basis on which it was argued by the parties.

The Legislature by placing in the hands of the board of public welfare the care and oversight of poor and indigent persons whom the defendant city was obligated to relieve and support (G.L.[Ter.Ed.] c. 117, §§ 1, 2), made the members of the board public officers for the performance of that public duty. A municipality, in the absence of special statute imposing liability, is not liable for negligent acts of its officers or employees in the performance of strictly public functions imposed or permitted by the Legislature from which no special corporate advantage, pecuniary profit or enforced contribution from individuals particularly benefited results. There is no such exoneration of a municipality from liability for negligent acts of its public...