Shute v. Princeton Township
| Decision Date | 23 July 1894 |
| Docket Number | 8869 |
| Citation | 59 N.W. 1050,58 Minn. 337 |
| Parties | A. B. Shute et al. v. Princeton Township |
| Court | Minnesota Supreme Court |
Submitted on briefs June 11, 1894
Appeal by plaintiffs, A. B. Shute and A. A. Shute, from an order of the District Court of Mille Lacs County, L. L. Baxter, J made March 3, 1894, denying their motion for a new trial.
The supervisors of Princeton Township in Mille Lacs County made a contract August 27, 1889, with August Pinz by which he agreed for $ 40 to burn the brush and grade about forty rods of a new highway adjoining the farm of the plaintiffs. He hired one of the board to work for him by the day on the job. While thus at work as a servant of Pinz he set fire to some brush in the highway and burned it up. The job was completed about the middle of September. When they left, Pinz and his servant, the supervisor, both supposed the fire was completely extinguished. But plaintiffs gave evidence tending to show that it smouldered in the adjacent swampy ground until September 30, 1889, and then broke out in a wind and ran across their farm and burned all the buildings and all the grain, tools and household goods on the farm.
When plaintiffs' evidence was all in the defendant asked the court to dismiss the action on the ground that it appeared that Pinz was an independent contractor and the defendant not liable for his negligence or that of his servants. The court granted the motion. Plaintiffs excepted and afterwards moved for a new trial, but were denied and they appeal.
Order affirmed.
Bruckart & Brower, for appellants.
The Board of Supervisors of Princeton determined to improve a highway. Umberhaker, a member of the Board, was authorized to let the contract. He made specifications on behalf of the town. One of the conditions of the contract was, that the contractor should set fire to and burn up brush in the road. After making known the conditions to bidders who had assembled, the contract was let to August Pinz for $ 40. Umberhaker was designated by the Board of Supervisors to superintend the work on the part of the town, which he did and received pay therefor. He was also employed by the contractor to aid in making the improvements and personally set the fire. These circumstances were sufficient to send the case to a jury for a finding whether or not the town was liable. Woodruff v. Town of Glendale, 23 Minn. 537; Peters v. Town of Fergus Falls, 35 Minn. 549; Township of Hutchinson v. Filk, 44 Minn. 536; McClure v. City of Red Wing, 28 Minn. 186; Ashley v. Port Huron, 35 Mich. 296; Pettigrew v Village of Evansville, 25 Wis. 223.
Chas A. Dickey, and Warner, Richardson & Lawrence, for respondent.
No private action can be maintained against a town for an injury caused by a negligent act done in the direct performance of a public duty imposed upon it by law for the benefit of the public, and from the performance of which the corporation receives no pecuniary profit. Brown's Adm'rs v Town of Guyandotte, 34 W.Va. 299; Howard v. City of Worcester, 153 Mass. 426; Snider v. City of St. Paul, 51 Minn. 466; Welsh v. Village of Rutland, 56 Vt. 228; Burrill v. City of Augusta, 78 Me. 118; Wild v. Paterson, 47 N. J. Law 406; Jewett v. City of New Haven, 38 Conn. 368; Edgerly v. Concord, 59 N.H. 78, 341.
The town could not be held liable for the tort of an independent contractor or his employee. Eaton v. European & N. A. Ry. Co., 59 Me. 520; Scammon v. Chicago, 25 Ill. 424; McCarthy v. Portland Second Parish, 71 Me. 318; New Orleans & N.E. R. Co. v. Reese, 61 Miss. 581; Hughes v. Railway Co., 39 Ohio St. 461; Wabash, St. L. & P. Ry. Co. v. Farver, 111 Ind. 195; Murdfeldt v. New York, W. S. & B. Ry. Co., 102 N.Y. 703; St. Louis Ft. S. & W. R. Co. v. Willis, 38 Kan. 330; Edmundson v. Pittsburgh, McK. & Y. R. Co., 111 Pa. St. 316; Harrison v. Collins, 86 Pa. St. 153; Reed v. Allegheny City, 79 Pa. St. 300.
Collins, J. Buck, J., absent, took no part.
For the purposes of this opinion, it may be assumed that on the trial below it was clearly shown that, when letting the contract to Pinz for the repairing of the highway, the supervisors of defendant town required of the contractor that certain brush which had previously been cut and piled up in the way be destroyed by fire, and also that, through negligence, it was this fire which escaped and consumed plaintiffs' property. But, with this assumption, it does not follow that the town can be held liable in damages. The loss sustained by plaintiffs was not on account of the act required of Pinz by the supervisors, but on account of the careless and...
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