Richmond v. City of Norwich

• Decision Date: 04 August 1921
• Citation: 115 A. 11,96 Conn. 582
• Court: Connecticut Supreme Court
• Parties: RICHMOND v. CITY OF NORWICH et al.

115 A. 11

96 Conn. 582

RICHMOND v. CITY OF NORWICH et al.

Supreme Court of Errors of Connecticut.

August 4, 1921

[Copyrighted Material Omitted]

Appeal from Superior Court, New London County; John E. Keeler and John P. Kellogg, Judges.

Action by Mae Richmond against the City of Norwich and others to recover damages for alleged negligence. A demurrer to and a motion to strike out the second defense were sustained, and the case tried to the jury. Verdict and judgment for the plaintiff, to recover $25,000. Motions in arrest of judgment to set aside verdict, and for a new trial, with an appeal by defendants. Error on appeal, and new trial granted.

The city of Norwich maintained the Fairview reservoir as a part of its water supply for the benefit of its inhabitants, and sold its water to them for a profit to it. The facts in relation to this are stated in detail in Hourigan v. Norwich, 77 Conn. 358, 59 A. 487, and need not be here repeated.

Special Laws of Connecticut, approved July 5, 1871, of the charter of the said city, vol. 7, p. 198, § 79, provides that-

" The waterworks constructed by the said board of water commissioners in behalf of said city *** shall be and remain the property of said city, and shall be forever maintained by the said board of water commissioners, under the direction of the court of common council of said city, and in the manner provided by the by-laws or ordinances."

Section 85 provides that in the distribution of the water the board shall act under the direction of the said court of common council, and shall with its assent establish scales of prices or terms upon which water shall be furnished, and shall make such by-laws or regulations for the preservation, protection and management of the said waterworks as may be deemed advisable, and upon approval of them by the common council they shall be of binding validity.

Section 83 provides, that the court of common council must approve of the election of a president of said board, and fix his salary, and that he shall perform any duties assigned to him by the council. Other sections provide that claims on account of the waterworks must be approved by the council which appropriates money to pay them, and " the hire of clerks and agents, and of extending pipes into new localities" shall be under the direction of the council.

The jury might have found from the evidence offered by plaintiff that on May 15, 1917, the board employed one Matri to act as guard of the reservoir in the night season; that Matri was without education, inferior in mentality, lacking in judgment, vicious in temperament, possessing little regard for the life or safety of other human beings, and was not a proper person to act as a guard or caretaker, and was not a man qualified or fit to be armed with a dangerous weapon, and to act as a guard of the reservoir-all of which the board knew. The superintendent who selected Matri armed him with a Winchester repeating rifle, and directed him to guard the reservoir and the land adjoining, and to scare intruders, and, if necessary, to " shoot, but shoot low; shoot in the legs." The board stationed the guard at the reservoir as a war emergency measure. The reservoir was a place of natural beauty, and a resort of persons in the hot weather, and reached by a roadway leading from the public highway. The board erected across this roadway for its entire width a fence made of strong poles, from which were strung several strands of telephone wire.

A Mr. Dow, on July 30, 1917, drove his automobile, containing his wife, and, as his guests, the plaintiff and her mother, to the reservoir by the Scotland Highway to its junction with the Reservoir Road, where there stood a sign, " To the Reservoir" with index pointing to the Reservoir road. He had proceeded along this road to a point about 300 feet from the dam when a large dog ran alongside the car, and a man called out, but he could not distinguish the words. He had met with no obstructions in the roadway, and saw no warning sign. He brought the car to a stop, and shortly began turning around, and when he had partly turned, without warning Matri fired a shot into the back of the car, and it struck the plaintiff. When the car was fully turned, and was going away from the reservoir, Matri fired two more shots, neither of which hit the car or its occupants.

The defendants offered evidence to prove that said fence was a substantial fence; that just after dusk Matri heard a crash at the fence, and upon investigation found the posts and wire partly knocked over. One of the guards went away to telephone to the superintendent. Matri remained, and shortly saw an automobile approach. It did not stop at the barrier, but continued on toward the dam. The guard shouted warnings to go back, and finally fired to scare away the intruders two warning shots. The car proceeded on to the dam. The top of the car was up, and the guard could not see who was in the car. None of its occupants made any answer. When the car reached the point nearest the edge of the dam, the guard fired a third shot, which struck the plaintiff. The guard fired low, and did not intend to hit any one in the car. His purpose was to scare them away.

Interrogatories as follows were submitted to the jury and answered:

(1) Was the defendant negligent in selecting Joseph Matri to act as a guard of its reservoir property? Answer. Yes.

(2) Was Joseph Matri in fact an improper and incapable person to perform the duties of armed guard of said reservoir property? Answer. Yes.

(3) Was the defendant negligent in failing to maintain a sufficient fence or warning on the approach to the reservoir by way of the Reservoir Road, so called? Answer. Yes.

(4) Was the plaintiff at the time of the accident a trespasser on the defendant's land? Answer. No.

(5) Did Matri, in firing the shot which wounded the plaintiff act, as a reasonably prudent man would act under the circumstances then existing? Answer. No.

Burpee, J., dissenting.

Allyn L. Brown and Edwin W. Higgins, both of Norwich, for appellants.

John H. Cassidy and Lawrence L. Lewis, both of Waterbury, for appellee.

WHEELER, C.J.

Error is assigned in the failure of the court to submit to the jury the issue of whether the defendant city was engaged in the performance of a governmental duty at the time Matri, the guard at the reservoir, shot the plaintiff. If it be assumed that the defendants are right in their position that, either the second defense was improperly eliminated from the case by demurrer, or if not, that the issue of governmental duty did not need to be affirmatively alleged, or that sufficient evidence upon this subject was introduced to make it necessary to submit this question to the jury in accordance with defendants' requests, we do not think that the trial court committed harmful error in failing to make such submission.

When a municipality is engaged in the performance of a public duty for the public benefit, and not for its own corporate profit it will be immune from liability for injuries done in the performance of such acts. The defendant city was not engaged upon such a duty at the time the plaintiff suffered her injuries. In collecting, distributing, and vending water it was engaged in the performance of acts done in the management of its property or rights for its own corporate benefit or profit, and that of its inhabitants, and for injuries caused by it through its negligent acts it cannot plead governmental immunity. So that, upon the conceded facts in this case, the question of governmental immunity did not arise in the case, and we have no occasion to consider the ruling upon the demurrer or the other claims made by the defendants upon this issue. The case of Hourigan v. Norwich, 77 Conn. 358, 364, 365, 59 A. 487, is conclusive upon this question. Ground 4 of the demurrer to the complaint in that case raises the precise point, and was overruled, and that ruling upheld, and this accords with the best-considered authority.

Complaint is made by the appellants of the charge:

" And the Board of Water Commissioners had the power to employ the superintendent with the powers hereinbefore set forth."

The claim of the defendants is that the acts of Matri were not the acts of an authorized agent of the city since the act of Burnap in employing Matri as a guard was unauthorized by the board of water commissioners, and that the board did not have the power to preserve, protect, and manage the water supply by the employment of a guard without the approval of the court of common council. The superintendent's duties were particularized in the evidence by having the finding as to them in Hourigan v Norwich, supra, incorporated. This specifies that the superintendent has authority to hire and discharge all labor. Whether the board of water commissioners had authority to authorize the superintendent to employ Matri for the purpose of guarding the reservoir depends upon whether the charter gives to it this power, and it is of course essential that the mode of exercise of the power prescribed be followed. The defendants rely upon the provision in section 85 of the charter that the board shall make by-laws or regulations for the preservation, protection, and management of the waterworks, and that these shall be binding when approved of by the court of common council. So far as the record discloses, the council have never approved of any such by-laws or regulations. The logic of the defendants' claim would compel the position that the board had no authority to maintain the waterworks, and to provide help in its care and maintenance, except with the approval of the council. But the reading of all of the provisions of the charter shows that the Legislature did not contemplate so...