Scibilia v. City of Philadelphia

• Decision Date: 10 December 1923
• Docket Number: 292-1922
• Citation: 82 Pa.Super. 328
• Parties: Scibilia v. City of Philadelphia, Appellant
• Court: Pennsylvania Superior Court

82 Pa.Super. 328

Scibilia v. City of Philadelphia, Appellant

No. 292-1922

Superior Court of Pennsylvania

December 10, 1923

Argued October 9, 1923

Appeal by defendant, from judgment of C.P. No. 1, of Phila. Co.-1921, No. 449, on verdict for plaintiff in the case of Guiseppe Scibilia v. City of Philadelphia.

Trespass to recover damages for personal injuries. Before Shoemaker J.

The facts are stated in the opinion of the Superior Court.

Verdict for plaintiff in the sum of $ 250 and judgment thereon. Defendant appealed.

Error assigned was, among others, the refusal of defendant's motion for judgment non obstante veredicto.

Reversed.

Harry S. Platowsky, Assistant City Solicitor, and with him William M. Stewart, Jr., Assistant City Solicitor, and David J Smyth, City Solicitor, for appellant. -- The City of Philadelphia in collecting ashes and refuse was performing a purely governmental function and, therefore, is exempted from liability for the negligence of its employees while in the performance of such work: Com. v. Bredin, 165 Pa 224; Cousins v. Butler County, 73 Pa.Super. 86; Bodge v. Philadelphia, 167 Pa. 492; Love v. Atlanta, 95 Ga. 129; Kippee v. Louisville, 140 Ky. 423; Louisville v. Carter, 142 Ky. 443; Haley v. Boston, 101 Mass. 291; Johnson v. Somerville, 195 Mass. 371.

John J. McDevitt, Jr., for appellee. -- The collection of ashes was not a governmental function and the city was liable for the negligence of its servant: Briegel v. Philadelphia, 135 Pa. 451; Morgan v. Duquesne Boro., 29 Pa.Super. 100; Armstrong and Latta v. Philadelphia, 249 Pa. 39; Fox v. Philadelphia, 208 Pa. 127; Bodge v. Philadelphia, 167 Pa. 492.

Before Orlady, P. J., Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.

OPINION

GAWTHROP, J.

This action in trespass was brought against the City of Philadelphia to recover damages for personal injuries sustained by plaintiff as the result of alleged negligence of defendant's servant who, within the scope of his employment, was engaged in the Bureau of Street Cleaning of the Department of Public Works of the city in driving an automobile truck loaded with ashes, which were being removed from private premises. The trial resulted in a verdict for plaintiff. A motion for judgment non obstante veredicto followed, the city asserting that it is not legally responsible for the negligence of its employees when engaged in the removal of ashes from private premises. From the dismissal of this motion and judgment entered on the verdict we have this appeal. Collins v. Com., 262 Pa. 572, reaffirmed the rule of law in this Commonwealth that a state is not liable for the negligence of its officials and agents. This immunity from liability, which rests upon grounds of public policy, applies not only to the state but also to agencies or instrumentalities of the state when in the exercise of public or governmental powers or in the performance of public or governmental duties: Cousins v. Butler County, 73 Pa.Super. 86. This is established doctrine: Dillon on Mun. Corp. (5th Ed.), section 1626. For example, a city is not liable for the negligence of a policeman while acting in his official capacity: Elliott v. Phila., 75 Pa. 347; nor for injuries caused by the negligent driving of a fire engine by an employee of the fire department: Knight v. Phila., 15 W.N.C. 307. A school district is not liable for the negligence of school directors or of their employees: Ford v. School District, 121 Pa. 543; Rosenblit v. Phila., 28 Pa.Super. 587. Many other authorities to the same effect from this and other jurisdictions are cited by our Brother Keller in the opinion in Cousins v. Butler County, supra. That opinion so lucidly and exhaustively demonstrates the well settled distinction between public duties of municipalities and other governmental agencies and their private duties, the difference between things which they may do by virtue of their powers of sovereignty and those things which they may do in the capacity of a corporation, that little is left for us to do but to apply the principles to the facts before us. But, the circumstances being stated, it is often difficult to determine what power is being exercised. The courts have sometimes failed to recognize the true distinction between the two kinds of functions. That this is true in our own State may be asserted on the authority of Ford v. School District, 121 Pa. 543, where Chief Justice Gordon, referring to the liability of townships for negligence of supervisors in the care and maintenance of public roads, said: " It is very true, that in support of the plaintiff's contention we have many analogous cases where damages have been recovered against townships, and other municipalities, resulting from the negligence of their officers in the construction and maintenance of their streets and highways, and for such cause the public treasury has been obliged to make good private loss. The reason for this rule is not very obvious. It is based upon the idea that, as upon municipalities the legislature has imposed the duty of maintaining public highways, therefore they are responsible for a neglect of that duty. But as the same reason will apply to all cases in which a duty is imposed, so should the same rule be applied to the police, fire, sanitary and pauper departments of municipalities, though, as we have seen, it does not so apply. All we can say is, that for the one class of cases we have precedent on which to rest, and in the other, we have no such precedent but rather the contrary. Reason is all with the latter view of the subject, for the conclusion that the public should be held responsible for the misconduct of its supervisors of highways, is just as illogical as that it should be so held for the misfeasance of its constables and overseers of the poor. But we are not disposed to quarrel with decisions, or unsettle old and well established rules, hence we have but to say that whilst the doctrine respondeat superior does apply to townships, boroughs, and cities, so far as streets and roads are concerned, it does not apply to school districts." In that case the school district was held not liable for the negligent act of its janitor in using crude petroleum to start the fire, although the existing law imposed on the school district the duty of supplying the school houses with fuel. Since the decision in Western Savings Fund Society v. Phila., 31 Pa. 185, our Supreme Court has held to the principle that in determining the distinction between the governmental and the business functions of a public body " regard should be had, not so much to the nature and character of the various powers conferred, as to the object and purpose of the legislature in conferring them. If granted for public purposes exclusively, they belong to the corporate body in its public, political or municipal character. But if the grant is for purposes of private advantage or emolument, though the public may derive a benefit therefrom, the corporation, quoad hoc, is to be regarded as a private company. It stands on the same footing as would any individual or body of persons upon whom like special franchises had been conferred." This language was quoted with approval in Moore v. Luzerne County, 262 Pa. 216, in which it was held that the building of a public road is a governmental as distinguished from a business function of the public body constructing it.

Section 5, of article XX, of the Act of June 25, 1919, P. L. 581 entitled " An Act for the better government of cities of the first class of this Commonwealth," and known as the " Charter Act," provides, inter alia, as follows: " Any such city shall have the power to pave, repair and clean the...