Rhobidas v. City of Concord

CourtSupreme Court of New Hampshire
Citation70 N.H. 90,47 A. 82
Decision Date16 March 1900

Action by Edward Rhobidas against the city of Concord for personal injuries. Demurrer to answer sustained.

Case for personal injuries alleged to have been caused by the defendants' negligence while the plaintiff was employed as a servant in their waterworks department. The defendants pleaded specially that they are a municipal corporation maintaining the waterworks solely for fire purposes and for the benefit of their citizens, without profit to the city; that, by virtue of an ordinance of the city passed under authority of an act of the legislature, the sole control and management of the waterworks are vested in a board of commissioners, whom the city cannot direct or control in the discharge of their duties, and who are not the city's agents; that under the authority of said act the city established a water precinct, which includes only a portion of the city, and is a quasi municipal corporation, in which, and in the waterworks maintained thereby, the defendants have no interest, except in a purely governmental or legislative capacity. The plaintiff demurred.

Walter S. Peaslee and E. A. & C. B. Hibbard, for plaintiff.

Sargent & Niles, for defendants.

PEASLEE, J. The plaintiffs demurrer raises the question whether there is in this state any common-law liability of a municipal corporation, and, if there is, whether it exists in the class to which the present case belongs. While it is the law of this jurisdiction that towns are to a certain extent a part of the state, and therefore not suable at common" law, no case has gone so far as to hold that this rule applies to all cases. There are some expressions in Wooster v. Town of Plymouth, 62 N. H. 193, which might, taken alone, bear such interpretation; but that this is not their meaning is apparent from the fact that the opinion is expressly limited in its application to the corporate rights of towns "so far as they are involved in this suit," and relates to "their purely public c pacity." Id. 221. The expressions are perfluous, if towns have not rights and duties which are not purely public. It is important to note that the question there involved was "whether, in the vindication of lights purely public, the state is constitutionally entitled to trial by jury, and, if it is not, whether in this case the defendants stand in the position of the state or in the position of a private person." Id. 194. The court did not understand that the earlier cases upon common-law municipal liability were involved in the consideration of this question; for, if there had been such understanding, it cannot be doubted that those cases would have received full consideration. Again, at the same term it was said in another case: "To charge a corporation with damages for injuries arising from misfeasance and neglect of duty, no statute fixing the liability, there must be acts positively injurious committed by authorized agents or officers in the course of the performance of corporate powers or in the execution of corporate duties, in distinction from those done in a public capacity, as a governing agency. * * * Municipal corporations may be liable for acts done under a grant of special powers not held under any general law, and from the execution of which some special profit or advantage is derived (Rowe v. City of Portsmouth, 56 N. H. 293); and generally, for injuries received from the negligent management of property not held for strictly public purposes, corporations are liable in the same way and to the same extent as individuals." Edgerly v. City of Concord, 62 N. H. 8, 19. In another opinion, also delivered at the same term, this language was used: "The city was dealing with and managing the land as a private owner deals with and manages his own property. Under such circumstances the defendants would be liable for an injury resulting from their want of care, in the same manner and to the same extent that an individual would for his negligent acts in the care and management of his property." Clark v. City of Manchester, 62 N. H. 577, 579. It is evident that many of the remarks in Wooster v. Town of Plymouth, which are correct as applied to the facts and questions of law involved in that case, are not applicable, and were not intended to refer to, cases involving dissimilar questions.

The mere fact that a town is engaged in the performance of a public duty is not enough to free it from all common-law liability for its acts, if the word "public" is to be taken in the broad sense of including every enterprise which may be supported by taxation. There is no case laying down such a doctrine in this state. Farnum v. Town of Concord, 2 N. H. 392, merely states the rule as applicable to an action by a traveler for damages caused by a defective highway, giving no reasons therefor. The Massachusetts case relied upon (Mower v. Inhabitants of Leicester, 9 Mass. 247) was decided upon the authority of Russell v. Men of Devon Co., 2 Term R, 667, and the reasons for the decision there have not been understood as going to the extent of denying all common-law liability of municipal corporations. See Mower v. Inhabitants of Leicester, 9 Mass. 250, note; Ball v. Town of Winchester, 32 N. H. 435, 442; Eastman v. Town of Meredith, 36 N. H. 284, 298; Hill v. Boston, 122 Mass. 344; Mayor of Lynn v. Turner, Cowp. 87. In the case last cited, the court of king's bench, speaking through Lord Mansfield, recognized the common-law liability of a municipality 14 years before the decision of Russell v. Men of Devon Co. In Ball v. Town of Winchester, supra, liability is denied upon the ground that highway surveyors are independent public officers, over whose acts the town has no control. So far as it decides that a town may, in the maintenance of highways, negligently flood the land of abutters, it is not now the law of this state. Gilman v. Town of Laconia, 55 N. H. 130. In Eastman v. Town of Meredith, 36 N. H. 284, 288, 295, 301, the decision is placed upon the ground that the action was based upon an injury to the plaintiff when in the exercise of a public right. If the injury had been caused by an infringement of a private right, the result might have been different. "If the defendants in the present case had laid and maintained the foundations of their town house across a stream, and caused the water to flow back on the plaintiff's land, according to these authorities they would have been liable." Id. 296. The general statements concerning liabilities of towns in Proctor v. Town of Andover, 42 N. H. 362, are dicta. The decision is expressly put upon the ground that it was not the duty of the town to maintain the gate in question. Hardy v. Town of Keene, 52 N. H. 370, only decides (so far as this case is concerned) that highway surveyors are not the agents of the town. "They are public officers, whose duties are prescribed by law. Their authority is not derived from the town, but from the statute. They are not under the control of the town. Their powers cannot be enlarged or abridged by any action of the town; and what they do or omit to do, in the proper exercise of their authority, is done or omitted because the law enjoins and prescribes their duties independent entirely of municipal control or authority." Id. 377. Edgerly v. City of Concord, 62 N. H. 8, applies the same rule to fire engineers. "They were public officers, amenable to law for their conduct, and not under control or direction of the city. They were not agents or servants of the city in any such sense as to bind it by their acts or make it liable for their defaults." Id. 20. In Clark v. City of Manchester, Id. 577, it is said that a town is not liable for neglect to perform "a public corporate duty"; but this falls far short of saying that it is not liable for negligence in the performance of a public work, whereby private rights are infringed. In Sargent v. Town of Gilford, 66 N. H. 543, 27 Atl. 306, the nonliability of a town for defective highways at common law is upheld, because the duty to maintain them is imposed upon the town. "The duty is a public one, and it was placed upon towns without their procurement or assent. They derive no special benefit, pecuniary or otherwise, from the performance of it. The service is not due from them to the state or to the public by force of a common-law obligation, but it is imposed upon them by statute." Id. Certain remarks in Doolittle v. Town of Walpole, 67 N. H. 554, 38 Atl. 19, seem to be broad enough to warrant the assumption that a town is not suable in any case where the right of action is not expressly or impliedly conferred by statute, but these remarks were limited to "the purpose of the present inquiry." In Gross v. City of Portsmouth, 68 N. H. 266, 33 Atl. 256, nonliability is put upon the same ground as in Edgerly v. City of Concord, supra: "The water commissioners are not the city's agents, but an independent board. The city cannot direct or control them in the discharge of their duties. They have exclusive authority to determine where and in what manner water pipes shall be laid, and to do all other, things touching the construction, maintenance, and management of the waterworks." Id., 68 N. H. 267, 33 Atl. 256.

A careful consideration of these cases must lead to the conclusion that there is no general rule by which the common-law liability of towns has been ascertained. That there is such a liability in certain cases is well established in this state. See cases hereinafter cited. What cases will or will not come within this class may be determined, to some extent, by a process of elimination. It appears that towns are not liable at common law (1) for the improper discharge of a purely governmental function (Eastman v. Town of Meredith, 36 N. H. 284; Doolittle v. Town of Walpole, 67 N. H. 554, 38 Atl. 19); (2) for neglect to perform duties imposed upon them without...

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