Smith v. Com.

• Decision Date: 07 May 1964
• Parties: Anne F. SMITH, administratrix, v. COMMONWEALTH et al. Anne F. SMITH v. COMMONWEALTH and the Metropolitan District Commission.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 420

198 N.E.2d 420

347 Mass. 453

Anne F. SMITH, administratrix, v. COMMONWEALTH et al.

Anne F. SMITH v. COMMONWEALTH and the Metropolitan District Commission.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 7, 1964.

Decided May 7, 1964.

Robert A. Shea, Boston, for petitioner.

Samuel W. Gaffer, Asst. Atty. Gen., for respondents.

Before WILKINS, C. J., and CUTTER, KIRK, SPIEGEL and REARDON, JJ.

KIRK, Justice.

These two petitions are brought to recover compensation for personal injuries and for damage to personal property allegedly caused by the bursting in Somerville on July 26, 1957, of a water main which was constructed and controlled by the respondent Metropolitan District Commission (the M. D. C.), an agency of the Commonwealth. The first petition, originally brought by John M. Smith, since deceased, is now prosecuted by his widow as administratrix who seeks compensation for personal injuries suffered by Smith and for consequential damages for medical expenses incurred by him for his wife. The second petition, brought by Mrs. Smith in her own right, seeks compensation for personal injuries and for damage to her personal property.

Both petitions allege, in summary, that the injuries were caused (1) by the negligence of the M. D. C. in its construction, operation, and maintenance of the waterworks and (2) by a defective condition in the waterworks. Both petitions refer generally to 'an act of * * * [the] Legislature to compensate * * * for damages that may have occurred * * * as a result of the bursting of said water main. * * *'

To each petition the respondents filed a demurrer and a motion to dismiss. Although the petitions are plainly demurrable, it appears that a hearing was had only on the motions to dismiss. The grounds of each motion were that: (1) the Superior Court had no jurisdiction of the action or claim; (2) the petition failed to allege any action or claim for which the Commonwealth had submitted itself to the jurisdiction of the court; (3) there is no statutory liability on the Commonwealth or the M. D. C. for the cause alleged; (4) the Commonwealth is not subject to G.L. c. 223 or other procedural incidents of ordinary law suits. The motions set forth no facts not already apparent on the record and are founded solely upon it. The motions to dismiss were allowed, and from their allowance the petitioner has appealed. Since the orders of the judge are founded on matter of law apparent on the record and, if allowed to stand, would be decisive of the case, the appeals are properly before us. G.L. c. 231, § 96. Graustein v. Boston & Maine R. R., 304 Mass. 23, 25, 22 N.E.2d 594. See Summers v. Boston Safe Deposit & Trust Co., 301 Mass. 167, 169, 16 N.E.2d 670. We are called upon to decide whether the petitions state any action or claim that affords a basis for recovery.

It is fundamental that the Commonwealth, along with its duly constituted public agencies, cannot be sued for the torts of its officers, agents or employees except by a clear manifestation of consent thereto by statute. Burroughs v. Commonwealth, 224 Mass. 28, 29, 112 N.E. 491. Glickman v. Commonwealth, 244 Mass. 148, 149-150, 138 N.E. 252. The statutory 'intent to confer such authority should be clearly manifested.' Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28, 29, 24 N.E. 854, 855, 8 L.R.A. 399. As was stated by Qua, C. J., 'It is axiomatic that the Commonwealth can be held answerable in its own courts only to the precise extent and in the precise manner to and in which it has submitted itself to their jurisdiction by statute.' Putnam Furniture Bldg. Inc. v. Commonwealth, 323 Mass. 179, 185, 80 N.E.2d 649, 653, and cases cited. Accordingly, we examine the relevant statutes to determine whether, in the light of the allegations in the petitions, the Commonwealth or the M. D. C. is subject to liability in tort.

It is too clear for extended discussion that G.L. c. 258, § 1, ¹ under which both parties have assumed the petitions were brought, it procedural in purpose and is not in itself the source of any new rights against the Commonwealth. 'The object of * * * [G.L.] c. 258 [§ 1] was not to create a new class of claims for which the Commonwealth had never been held responsible, but to provide a convenient tribunal for the hearing of claims of the character that civilized governments had always recognized, although the satisfaction of them has usually been sought by direct appeal through the Legislature.' Arthur A. Johnson Corp. v. Commonwealth, 306 Mass. 347, 351, 28 N.E.2d 465, 468. Executive Air Serv, Inc. v. Division of Fisheries & Game, 342 Mass. 356, 359, 173 N.E.2d 614, and cases cited. It follows that G.L. c. 258, § 1, per se, imposes no liability in tort upon the respondents.

The petitioner contends, however, that the Commonwealth has consented to be subject to liability in tort by the express provisions of G.L. c. 92, § 15, which provides in part: 'The commission [the M. D. C.] shall keep all water works constructed or maintained by it and all bridges built by it across the reservoir upon the Nashua river safe, and shall have charge of, use, maintain and operate the same, and the commonwealth shall be exclusively responsible for all damages caused thereby or by any defect or want of repair therein.' This contention will be considered later in this opinion.

We deal first with the argument of the respondents that the quoted provision is limited in its application to waterworks and bridges built across the reservoir on the Nashua River. We do not agree. We conclude from a study of St.1895, c. 488, the original act from which G.L. c. 92, §§ 10-32 (Metropolitan Water District) descends, that the Legislature intended a broader application of § 15. Statute 1895, c. 488, read as a whole, discloses a grand design, worked out in detail, to create and maintain a pure and adequate supply of water, by a system of waterworks, for the inhabitants of Boston and of the twelve surrounding towns and cities, including Somerville, all constituting the Metropolitan Water District. It imposed upon the Metropolitan Water Board broad responsibilities for the construction and maintenance of the system. The Metropolitan Water Board (a predecessor of the M. D. C.) established by St.1895, c. 488, § 1, were by various sections of c. 488, ordered or authorized, among other things, to acquire real estate, ponds and other water basins, and specifically the south branch of the Nashua River; to construct a storage reservoir upon the Nashua River; to take the Chestnut Hill Reservoir and pumping station; to take all of the city of Boston water supply system westward of the Chestnut Hill Reservoir; to take the water supply systems of named cities and connect them with the Chestnut Hill Reservoir and Spot Pond; and to construct buildings, lay pipes, alter water courses, and remove and rebuild dams (§§ 3, 4, 6, 7, 9). By St.1895, c. 488, § 10, it was provided that on or before January 1, 1898, the board 'shall commence the operation of the works taken by them from the city of Boston, and shall thereafter keep the same and all water works constructed by them, and all bridges which they may build across said reservoir upon the Nashua river, * * * safe, and shall have charge of, use, maintain and operate the same, and the Commonwealth shall exclusively be responsible for all damages caused thereby or by any defect or want of repair therein * * *' (emphasis supplied). By thus setting off between the word 'keep' and the word 'safe' the words which we have italicized the Legislature made clear its intention to impose upon the board the duty to keep safe: (1) the waterworks taken by them from the city of Boston; (2) all waterworks constructed by them under the act; and (3) all bridges they might build across the reservoir on the Nashua River. Since the fundamental purposes of St.1895, c. 488, and the responsibilities of the board [the M. D. C.] under it have been retained in G.L. c. 92, §§ 10-32, we conclude that the legislative intent to give the indicated application to St.1895, c. 488, § 10, remained unchanged when that section was recast in the language now found in G.L. c. 92, § 15. In its present form § 15 includes 'all water works constructed or maintained by [the M. D. C.]' (emphasis supplied). The M. D. C. is, therefore, under G.L. c. 92, § 15, charged with the duty to keep safe the water main which is the subject of the litigation.

It does not follow, however, that if the M. D. C. has failed in its duty to keep the water main safe, the M. D. C. or the Commonwealth must respond in damages for the consequences of the failure. The sole express provision in G.L. c. 92, §§ 10-32 (Metropolitan Water District), relating to the right to recover damages is found in the sentence in § 32 which reads: 'Any person injured in his property by the entry upon or use of his land by the commission under this section may recover his damages under chapter seventy-nine [EMINENT DOMAIN]' (EMPHASIS SUPPLIED). it is obvious that the damages sought in the petitions do not come within the purview of the eminent domain statute.

We turn to further consideration of the language, already referred to, in G.L. c. 92, § 15, which provides that 'the...