Tomlin v. Hildreth

• Decision Date: 12 November 1900
• Citation: 65 N.J.L. 438,47 A. 649
• Parties: TOMLIN v. HILDRETH et al.
• Court: New Jersey Supreme Court

47 A. 649

65 N.J.L. 438

TOMLIN

v. HILDRETH et al.

Supreme Court of New Jersey.

Nov. 12, 1900.

(Syllabus by the Court.)

Action by Enos Tomlin against James M. E. Hildreth and others. Demurrers of certain of the defendants overruled. Demurrer of the city of Cape May sustained.

On demurrer to the declaration by the defendant the city of Cape May, and on demurrer to the plea of the statute of limitations of two years filed by the other defendants. The declaration in this case, in so far as it is necessary to quote it, is as follows: "James M. E. Hildreth and Albert G. Bennett, and the city of Cape May, a municipal corporation of the state of New Jersey, the defendants in this suit, were summoned to answer unto Enos Tomlin in an action of tort, and thereupon the said plaintiff, by John B. Huffman, his attorney, complains and says that the said defendants, with force and arms, to wit, on the thirty-first day of August, A. D. one thousand eight hundred and ninety-seven, at Cape May city, in the county of Cape May and state aforesaid, and within the jurisdiction of this court, assaulted the said plaintiff, to wit, at Cape May city, in the county and state aforesaid, on the said thirty-first day of August, A. D. one thousand eight hundred and ninety-seven, and then and there seized and laid hold of the said plaintiff, and with great force and violence compelled said plaintiff to go in and along divers public streets to and in a place known as the common jail of the city of Cape May, in the county of Cape May and state of New Jersey, said jail then and there being in a dirty, filthy, and unhealthy condition, and then and there imprisoned the said plaintiff in said jail, and kept and detained him in prison there in said jail, without any reasonable or probable cause whatsoever, for a long space of time, to wit, for the space of three days then next following, and until the said plaintiff paid a large sum of money, to wit, the sum of ten dollars," etc. Then follows special matter in aggravation of damages.

Argued June term, 1900, before the CHIEF JUSTICE, and GUMMERE, LUDLOW, and FORT, JJ.

John B. Huffman, for plaintiff.

J. Spicer Learning, for defendant.

city of Cape May. J. Spicer Learning and James M. E. Hildreth, for defendants.

James M. E. Hildreth and Albert G. Bennett.

FORT, J. (after stating the facts). This is a suit against the city of Cape May, a municipal corporation, and James M. E. Hildreth and Albert G. Bennett, individuals. They are sued jointly. The city and the other defendants have filed separate pleas. The defendant, the city of Cape May, has demurred to the declaration. The individual defendants have filed pleas by way of justification, and have pleaded in bar of the action the statute of limitations, that the suit was not instituted within two years after the alleged assault, etc. To the plea of the statute of limitations the plaintiffs have demurred.

We will first dispose of the demurrer by the city of Cape May. The declaration demurred to in this case is very general. It simply charges that the "city of Cape May, a municipal corporation, on the 31st of August, 1897, * * * assaulted the said plaintiff, * * * and then and there seized and laid hold of the said plaintiff, and with great force and violence compelled the plaintiff to go," etc., "to the common jail of the city of Cape May, * * * and there confined the said plaintiff in said jail, * * * without any reasonable or probable cause, * * * for the space of three days," etc. The declaration is one for assault and false imprisonment, and it simply charges that the city of Cape May committed the assault and forcibly imprisoned. There is no allegation that the act was done by any agent or servant of the municipality, but the allegation is that the municipality itself did the act. To say that the city of Cape May assaulted is to state a proposition which is a reductio ad absurdum. A corporation only acts by its agents or servants, and, to charge it with an actionable injury resulting from a willful or negligent act, it is necessary to allege that it acted by "its agents and servants," which, and which only, imports a possible liability by a corporation. A corporation itself—the legal entity—cannot commit either a willful or negligent act. It is not responsible for the act of any person not its agent or servant; hence the declaration must contain the words which impute liability to it through its actors, its officers, agents, or servants. The declaration must upon its face show that an action has accrued against the corporation by the alleged act or default of those for whom it must respond under the well-established principle of respondeat superior. The facts from which this will appear must be stated in the pleadings. Facts to constitute a cause of action must appear. 1 Chit. PI. p. 214.

The rule as here stated is especially applicable to a municipal corporation, which can be made liable for the acts of its agents or servants only in certain cases. There are a large class of acts by the officers, agents, or servants of a municipal corporation for which the municipality is not liable. The general rule as to the liability of a municipality for the negligent acts of its agents or servants (and as to their willful acts it is much the same) is that an officer elected or appointed by a municipal corporation, in obedience to legislative act, to perform a public service in which the corporation has no private interest, and from which it delives no special benefit or advantage in its corporate capacity, cannot be regarded as the servant or agent of the municipality for whose negligence or want of skill it can be held liable. Maxmilian v. Mayor, etc., 62 N. Y. 160; Fisher v. City of Boston, 104 Mass. 87.

It will thus appear that the liability of a municipal corporation for the willful or negligent act of its agents or servants will depend upon the question of whether they are its agents or servants for the performance of a public duty imposed by law, or merely for the carrying out of its private duties, which are for its special benefit or advantage. If the relation is of the former class the municipality is not liable, but if of the latter class it is. Hafford v. City of New Bedford, 16 Gray, 297; New York & B. Sawmill & Lumber Co. v. City of Brooklyn, 71 N. Y. 580; Oliver v. City of Worcester, 102 Mass. 489.

It seems to us, therefore, that it is fundamental to allege, in a declaration against a municipality, at least the fact that the act from which it is claimed that the liability arose was committed by some agent or servant of the municipality. In passing upon the sufficiency of the declaration before us, it is not necessary to decide whether it is essential to a good declaration against a municipality to specifically set out the relation of the agent or servant to the municipality, to show that he is within the class of agents or servants for whose acts the municipality is liable. In this case the declaration alleges no acts of any agent or servant of the municipality of any class whatever. It may be possible that a declaration which charges that the municipality, by its agent or servant, did or neglected to do the act for which the liability is claimed, is sufficient, and that proof upon the trial of the fact that the agent or servant is within the class for whose act or neglect the municipality may be held liable will entitle the plaintiff to recover; but that question is not here, and is not decided. It is very doubtful whether a municipality can be held in any case for an assault or false imprisonment by its agent or servant without clear proof, at least, of an express authorization or direction of the act by its duly-constituted authorities, acting in solemn form, to bind the corporation in the performance of an act or duty authorized by law. Smith v. City of Rochester, 76 N. Y. 506. Generally, on the question of municipal liability, there are two cases in this state that refer to the principle here touched upon in part. Condict v. Jersey City, 40 N. J. Law, 157; Wild v. Paterson, 47 N. J. Law, 400, 1 Atl. 490. Without going further into the question, we think the declaration does not state sufficient facts to show a cause of action against the defendant the city of Cape May.

The defendants Hildreth and Bennett, by their second plea to the declaration in this case, set up that upon the facts of the declaration it appears that the "said several supposed causes of action in the said declaration mentioned did not, nor did any or either of them, accrue at any time within two years next before the commencement of this suit." To this plea the plaintiff has demurred. The only remaining question, then, is, is that demurrer good? By sections 2 and 3 of an act "for the limitation of actions" (Revision approved ...