Pope v. City of New Haven

• Decision Date: 08 November 1916
• Citation: 91 Conn. 79,99 A. 51
• Court: Connecticut Supreme Court
• Parties: POPE v. CITY OF NEW HAVEN et al.

99 A. 51

91 Conn. 79

POPE

v. CITY OF NEW HAVEN et al.

Supreme Court of Errors of Connecticut.

Nov. 8, 1916.

Wheeler and Roraback, JJ., dissenting.

Appeal from Superior Court, New Haven County; James H. Webb, Judge.

Action by Arthur T. Pope, administrator, against the City of New Haven and others. Demurrer to the complaint sustained, and judgment for defendants, and plaintiff appeals. No error.

Action to recover damages for personal injuries resulting in the death of the plaintiff's intestate and alleged to have been caused by the defendants' negligence, brought to the superior court in New Haven county, where the defendant city's demurrer to the complaint was sustained, and judgment rendered for the city (Webb, J.), from which the plaintiff appealed. No error.

George E. Beers and Frederick C. Russell, both of New Haven, for appellant. Charles Kleiner and Henry H. Townshend, both of New Haven, for appellees.

THAYER, J. The complaint alleges that under authority conferred by its charter the city of New Haven made an appropriation for the purpose of the celebration of the day to be observed as Independence Day, July 5, 1915, and thereafter by way of such celebration sent up from the New Haven green in said city of New Haven certain bombs which were intended to explode in the air in such a way as to diffuse different colored lights. One of these it is alleged contained a fuse which was defective or damp, which fact was or ought to have been known to the city and its agents who were sending up the bombs, and was negligently sent up by them, and failed to explode in the air, but exploded after it reached the ground, and inflicted the injury complained of. The substantial ground of the city's demurrer is that the city in sending up the bomb was engaged in the performance of a public governmental duty from which it received no pecuniary benefit or advantage and for negligence in the performance of which no statutory liability is imposed.

It is well settled in this state that municipal corporations are exempt from liability for the negligent performance of a purely public governmental duty, unless made liable by statute. Hewison v. New Haven, 37 Conn. 475, 483, 9 Am. Rep. 342; Udkin v. New Haven, 80 Conn. 291, 296, 68 Atl. 253, 14 L. R. A. (N. S.) 868. The question is: Was the city, in celebrating Independence Day, as alleged in the complaint, engaged in the performance of such a duty?

July 4th, or, when that date falls upon Sunday, July 5th, is made a public holiday, called Independence Day, by our statutes. All or nearly all of the other states have similar statutes. While there is no United States statute making a similar provision, the different departments of the government recognize, and have recognized since the government was established, July 4th as a national holiday. Throughout the country it has been recognized and celebrated as such. These celebrations, calculated to entertain and instruct the people generally and to arouse and stimulate patriotic sentiments and love of country, frequently take the form of literary exercises consisting of patriotic speeches and the reading of the Constitution, accompanied by a musical program including patriotic airs, sometimes preceded by the firing of cannon and followed by fireworks. That such celebrations are of advantage to the general public and their promotion a proper subject of legislation can hardly be questioned. From the nature of the case it is apparent that in the case in hand the city could derive no pecuniary or other special advantage from such a celebration. It might more nearly affect its own inhabitants and those of the immediate vicinity than the more remote public. So would the erection of a public schoolhouse for the education of the children of the city, but no one would for that reason now claim the erection of the schoolhouse under authority of a charter or statute was merely for the profit or special benefit of the city. Still less can it be claimed that a celebration conducted under authority of charter or statute like the one in question Was for the pecuniary or special benefit of the city and not in performance of a public duty. When governmental functions are intrusted to the agency of municipalities they perform those functions within their territorial limits, but this does not deprive them of their public governmental character. The celebrations authorized by the defendant's charter are public ones only. A governmental duty may be imposed or authorized as well by charter as by general law. The latter may more clearly indicate the public policy, but where it appears that the duty referred to is a governmental one a private as well as a public act may confer it. In Jewett v. New Haven, 38 Conn. 368, 9 Am. Rep. 382, where the city charter empowered the city to provide for the preservation of the city from fires, it was held that it imposed a public duty for the public welfare upon the city. In Mead v. New Haven, 40 Conn. 72, 16 Am. Rep. 14, power was given the city by its charter to appoint a steam boiler inspector, and it was held that the city in making the appointment was discharging a public governmental duty. The present city charter is a public act, but we do not consider that as affecting the situation. The cases cited show that a public governmental duty may be imposed upon a municipality by its charter as well as by a public act. Nor does the fact that the charter does not impose an imperative duty upon the city to appropriate money to the purposes of the celebration, but merely permits it to be done, change the character of the act done. In each of the cases referred to the duty was not imposed, but was permissive only, and it was held that its exercise, when the city had acted under the authority, was the performance of a public duty. The same was held in Tindley v. City of Salem, 137 Muss. 171, 50 Am. Rep. 289, upon the authority of which this case was decided in the trial court. As there said, the motive and object are the same in such cases, though in the one the Legislature determines the necessity and expediency of the act to be performed, and in the other the necessity and expediency are left to be determined by the municipality. That case in all respects parallels the one before us, except that the law under which the appropriation for the celebration was made was a public law applying to all towns. All the questions raised in this case are therein fully discussed.

That the city was engaged in the performance of a governmental duty in sending up the bombs as a part of the celebration would not excuse it from liability for injuries resulting therefrom if the act of discharging them was in itself intrinsically dangerous. Colwell v. Waterbury, 74 Conn. 568, 573, 51 Atl. 530, 57 L. R. A. 218. But it is not alleged that the discharging of the bombs was in itself intrinsically dangerous. The allegation is that "a bomb of the character of that hereinbefore referred to, even with a perfect fuse, is intrinsically dangerous, and the act of discharging said bomb" (that is, the bomb with a damp and defective fuse) "was a negligent act." The injury is claimed to have been caused by the negligent act of sending up a bomb which was and which the city and its servants knew or ought to have known was defective. It appears from the complaint that the injury was due to the fact that the defective bomb did not explode in the air as it was expected to do, but, because of the damp or defective fuse, failed to explode until it reached the ground near the place where the intestate was located viewing the celebration. Many things are intrinsically dangerous the use of which with proper care under proper circumstances is not intrinsically dangerous. Gunpowder, dynamite, firearms, the firecrackers, and other squibs used in celebrations may be said to be intrinsically dangerous, but the proper use of them, ordinarily, is not so. Where the master or principal orders the use of such agencies under such circumstances that their use is intrinsically dangerous to others, the master is responsible for injuries resulting from such use. If the act ordered as commonly performed with the dangerous instrumentalities is not in itself dangerous to others, injuries resulting from the servant's negligent use of such instrumentalities are not imputable to the master. It is alleged that the display of fireworks took place on the public green in the defendant city and in dangerous proximity to certain of the city streets, and it has been argued that this allegation shows that the act of discharging the bombs was intrinsically dangerous, and constituted a nuisance for which the city is responsible. As pointed out already, there is no allegation that the injury resulted from such a cause, and it appears that the intestate was not a traveler upon the streets, and that she was not upon the street when injured, but was a spectator at the celebration upon a vacant lot across the street from the place where the defective bomb was discharged. It is useless to discuss the question whether, if the plaintiff had alleged negligence in discharging bombs from the locality mentioned because the act was intrinsically dangerous, the facts alleged, if proved, would establish such negligence. The only negligence alleged is the sending up of the defective bomb and failure to notify the intestate of her danger.

After the demurrer had been decided in favor of the city the plaintiff moved to amend his complaint so that it should appear that the celebration, discharge of fireworks, and explosion of bombs were for the corporate advantage of the city, and the motion was denied. The original complaint shows that the celebration was public; that, as before stated, the display was from the public green adjacent to two public streets. It thus appeared that the spectacle was open to the entire public with no opportunity for the city to receive any pecuniary benefit in the way of...