Stevens v. City of Manchester

• Citation: 127 A. 873
• Parties: STEVENS v. CITY OF MANCHESTER. WORTHEN v. SAME. VAN BROCKLIN v. SAME.
• Decision Date: 05 November 1924
• Court: Supreme Court of New Hampshire

127 A. 873

STEVENS

v. CITY OF MANCHESTER.

WORTHEN

v. SAME. VAN BROCKLIN v. SAME.

Supreme Court of New Hampshire. Hillsborough.

Nov. 5, 1924.

Exceptions from Superior Court, Hillsborough County; Marble, Judge.

Actions by Abbie D. Stevens, Harold M. Worthen, and George Van Brocklin, respectively, against the City of Manchester. Defendant's demurrers sustained, and plaintiffs bring exceptions. Exceptions overruled.

Case for negligence. The plaintiffs allege that fire losses to them were occasioned by the negligent failure of the defendant to keep its street hydrants in working order. In the superior court the defendant's demurrers were sustained, subject to exception.

Branch & Branch, Frederick W. Branch, and Charles E. Riobitaille, all of Manchester, for plaintiffs.

Warren, Howe & Wilson and Charles B. McLaughlin, all of Manchester, for defendant.

PEASLEE, C. J. "The use of the water from the hydrants is a public use, enjoyed in common by the people, and from which the city in its corporate capacity receives no special advantage; and, in the absence of a statute giving the action, the defendants cannot be made liable for a neglect of duty in respect to such public use." Edgerly v. Concord, 62 N. H. 8, 22 (13 Am. St. Rep. 533), and cases cited. The limitation of municipal liabilities have been discussed in many cases since Edgerly v. Concord was decided in 1882. In none of these cases is there any question made of the soundness of the proposition above quoted. It has always been understood that it was essential for a plaintiff to show the breach of a duty owed to him privately, as distinguished from one owed to the public.

Negligence, in law, is the breach of a duty to use care. If there is no duty, there is no negligence. In the present ease the city entered upon the work of voluntarily supplying water for the extinguishment of fires upon private property. It was under no obligation to undertake the work, or to continue it, or to do it in any particular way. The plaintiffs fail because they do not show the existence of a duty owed them by the defendant.

If it were assumed that in supplying water for fire service the commissioners were the agents of the city, for whose negligence the city would be responsible, the plaintiffs would stand no better. Lockwood v. Dover, 73 N. H. 209, 61 A. 32, relied upon by the plaintiffs, does not apply to the present case. The complaint there was that the sewer created a nuisance, to the damage of the plaintiff. It was not an action for failure to supply sewer facilities. The distinction between that case and this is that between the invasion of a private right and the mere failure to carry out a voluntary and gratuitous undertaking.

When, in the course of the performance of work voluntarily undertaken by a municipality in its private capacity, its agents are brought into relation with a third party, a duty arises to refrain from negligent injury to him. But this obligation relates to misfeasance only. If the municipality does nothing, no liability can be incurred. Such a liability cannot be predicated upon mere nonfeasance. Action or nonaction being within the defendant's right, no complaint can be made that it fails to act.

In order for these plaintiffs to recover, they must establish that the defendant owed to them a duty to supply...