Stouffer v. Morrison
Decision Date | 30 June 1960 |
Citation | 400 Pa. 497,162 A.2d 378 |
Parties | James F. STOUFFER, Appellant, v. Ralph D. MORRISON, J. A. Neidig, David Kefauver and the Borough of Shippensburg. |
Court | Pennsylvania Supreme Court |
Irwin Albert, Robert M. Frey, Marian Schwalm Furman Carlisle, for appellant.
Faller & Douglas, George F. Douglas, Jr., Carlisle, for Borough of Shippensburg.
Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO BENJAMIN R. JONES, COHEN, BOK, and EAGEN, JJ.
The plaintiff has sued three policemen and the Borough of Shippensburg, Cumberland County, for an alleged personal assult upon him by the officers. The Borough filed preliminary objections in the nature of a demurrer, averring immunity from liability. The preliminary objection was sustained and the plaintiff has appealed.
In Boorse v. Springfield Township, 1954, 377 Pa. 109, 103 A.2d 708, 709, Mr. Chief Justice Stern said:
'Plaintiff's case cannot surmount the barrier of the rule establishing the immunity of municipalities from liability for torts committed by their employes in the course of performance of a governmental function, unless a right of recovery is expressly granted by statute.'
The court below, by President Judge Shughart, filed the following opinion, lacking only its introductory paragraph, and we approve:
'It is well settled in this commonwealth that generally a municipality is not liable for a trespass committed by one of its policemen. In Boorse v. Springfield Twp., 377 Pa. 109 , two police officers discovered a valuable racing mare with one leg wedged in a culvert at the edge of a public highway. Without notifying the owner or giving him a change to extricate the mare the officers destroyed the animal. In sustaining the preliminary objection of the township to the plaintiff's complaint, Chief Justice Stern said at page 110 :
'This same doctrine has been followed in a multitude of other cases, a list of which is set forth at page 111 of the opinion in the Boorse case, supra.
'Counsel for the plaintiff contends that the above rule is not applicable in the instant case because he alleges in his complaint that the borough was aware of the fact that these three police officers 'at various times in the recent past * * * were guilty of similar unprovoked and unjustifiable assault and battery upon (other) persons * * *' nonetheless did not dismiss the officers 'but instead ratified and/or adopted the acts of such members of its police force.'
'We need not concern ourselves with a consideration of those cases where municipal corporations have been held liable in tort for the negligent acts of their servants committed in the course of proprietary functions of the municipality. The activity in which the officers here were engaged was clearly a governmental function.
'The basic principle underlying the rule of municipality immunity from liability for the tortious acts of its police officers is that such officers, performing in a governmental capacity, are not the agents or servants of the municipality but of the state itself.
"The theory is that the municipal corporation has a dual function, one exercised as a mere agent of the state in the process of government, the other private in its nature in that it is exercised for the particular benefit of the corporation and its inhabitants as distinguished from those things in which the whole state has an interest. If acting in its governmental capacity, the municipality is not liable in tort for either a nonfeasance or a misfeasance, because in so acting it is but the agent of the state and is so far a part of the state that it partakes of the sovereignty of the state in respect to immunity from suit. Concisely stated: The state is sovereign, the sovereign cannot be sued without its consent, the municipality is a mere agent of the state; q. e. d., the municipality cannot be sued unless the state shows its consent by legislation. * * * Another complication lies in the fact that the municipality being a legal entity can act only through its servants. In any case, then, in order for such corporation to be liable, the familiar doctrine of respondeat superior must be applied. But, say the cases, if the municipality is in the exercise of its public function the real superior is the state and not the municipality, and, for the reasons stated, there is no liability.' 120 A.L.R. 1376. This theory has been enunciated in numerous cases; Doty v. Village of Port Jervis, 52 N.Y.Supp. 57, 58; Buttrick v. City of Lowell, 1 Allen, 172; see annotation in 12 L.R.A. 537.
'It is plain that under the above theory the borough would not be liable because the officers are not the servants of the borough as alleged. The relationship necessary to make ratification operative is absent. Accordingly, it has been held that there could be no ratification of illegal acts of officers, such as to make the municipality liable. Calwell v. City of Boone, 2 N.W. (Iowa) 614; Peters v. City of Lindsborg, 20 Pac. (Kans.) 490.
'No cases in this Commonwealth have been cited and our own research has revealed none, but cases in other jurisdictions have consistently held that the municipality is not liable for the wilful violence or careless conduct of a public officer even where the violent temper or careless habits of the officer were or should have been known when he was appointed. 19 R.C.L. page 1108, Mumc. Corp., Section 390.
'In Craig v. City of Charleston, 54 N.E. 184 (Ill.), the City was held not liable for an assault by a police officer even though it was alleged that the mayor who appointed him 'knew, or should have known, of his dangerous and vicious character.' In McIlhenney v. City of Wilmington, 37 S.E. (N.Car.) 187, it was alleged that the assaulting policeman was frequently reprimanded by the mayor for his carelessness and incompetence, that the mayor and other city officials were frequently notified of his incompetency and that those who appointed him to the force were acquainted with his character. Nevertheless, a demurrer to the complaint, by the municipality, was sustained. The court said, at page 188: Other cases in which the municipality was held not liable even though there was an allegation that the municipality knew or should have known of the incompetency of the officer are: Rusher v. City of Dallas, 18 S.W. (Texas) 333; Doty v. Village of Port Jervis, 52 N.Y.Supp. 57; Lamont v. City of Waterville, 57 L.R.A. (N.S.) 1915 E., page 460 (Minn.); Wommack v. Lesh, et al., 305 Pac.2d (Kan.) 854 (1957).
The judgment is affirmed.
This case once again demonstrates the urgent need for legislative action. The attempt to determine whether liability exists when a state or municipal activity is conducted negligently by the test of whether it is a governmental or proprietary function has resulted in complete confusion. Morris v. Mount Lebanon Township School District, 1958, 393 Pa. 633, 144 A.2d 737.
We have treated torts by public employees on an ad hoc basic. No course has been charted to guide the courts in determining when and to what extent liability should...
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Moss v. School District of Norristown
...345 Pa. 457, 29 A.2d 17 (1942); Goldstein v. Philadelphia School Dist., 329 Pa. 71, 196 A. 863 (1938). And see: Stouffer v. Morrison, 400 Pa. 497, 162 A.2d 378 (1960); Anderson v. City of Philadelphia, 380 Pa. 528, 112 A.2d 92 I find it hard to understand plaintiff's citation of Landerman v......