Waldron v. City of Haverhill

• Citation: 10 N.E. 481,143 Mass. 582
• Parties: WALDRON v. CITY OF HAVERHILL.
• Decision Date: 23 February 1887
• Court: United States State Supreme Judicial Court of Massachusetts

143 Mass. 582

10 N.E. 481

WALDRON v. CITY OF HAVERHILL.

Supreme Judicial Court of Massachusetts, Essex.

February 23, 1887

COUNSEL

J.P. &amp B.B. Jones, for plaintiff.

The defendant had voluntarily assumed the work itself of repairing its streets, and supplying and preparing the materials therefor, and is liable for the acts in question performed under their direction, in the course of that work. Inasmuch as the city has a direct pecuniary interest in seeing that the work of repairing is done economically and properly, it has power to assume the work itself, and to have it performed under its own direction; and in such case, by voluntarily assuming the work for its own pecuniary benefit the persons performing the same are its agents or servants for whose acts it is responsible as a principal. Hawks v. Charlemont, 107 Mass. 414; Deane v. Randolph, 132 Mass. 475; Sullivan v. Holyoke, 135 Mass. 273; Tindley v. Salem, 137 Mass. 171. There is no reason, in law or in equity, why a city should not be allowed to make a public officer its agent. Benjamin v. Wheeler, 15 Gray, 486. If a person is qualified to perform certain duties as a public officer, it seems fair to assume that he would be a fit person to perform the same duties as an agent. It would have been difficult for the city to have more effectually assumed the direction and control of the work of repairing the streets, or of supplying and preparing the materials in question. There is a presumption that the superintendent, in directing the men who operated on the land the stone-crusher, in crushing rocks to be used in repairing the streets, was acting in accordance with the city ordinances, under the direction of the city, and that the committee chosen to direct him was performing its duty in that respect. The directions of the committee were the directions of the city, and the city, by assuming the work in question, and directing and controlling it, is liable to this defendant. Sullivan v. Holyoke, ubi supra. The legal significance of the word "employment" in that case can be only that he was under this direction of the committee. Barney v. Lowell, 98 Mass. 570, was decided on the authority of Walcott v. Swampscott, 1 Allen, 101, and the decision in the latter case was based upon the fact that the surveyor of highways was not under the control of the town. The plaintiff submits that there was evidence tending to show that the defendant city permitted real estate belonging to it, and under its control, to be used in such a manner as to constitute a nuisance.

John J. Winn, for defendant.

The duty of keeping public ways in repair is one imposed upon all towns and cities alike, as a public duty, from the performance of which they derive no special advantage in their corporate capacity. The relation of master and servant does not exist, and the maxim respondeat superior does not apply. White v. Phillipston, 10 Metc. 108; Bigelow v. Randolph, 14 Gray, 541-543; Hafford v. New Bedford, 16 Gray, 297; Child v. Boston, 4 Allen, 41-52; Barney v. Lowell, 98 Mass. 570; Hill v. Boston, 122 Mass. 344; Manners v. Haverhill, 135 Mass. 171; Tindley v. Salem, 137 Mass. 171; Benton v. Trustees of Boston City Hospital, 140 Mass. 13, 1 N.E. 836. A municipal corporation is not liable for the negligence or tortious acts of the superintendent of streets, or the workmen employed under him. Barney v. Lowell, 98 Mass. 570. The city gained no immediate advantage or emolument from their use, and cannot be held responsible for the negligence or tortious acts of the superintendent in the care of property necessary for the performance of duties which the general law imposes. Barney v. Lowell, 98 Mass. 570; Oliver v. Worcester, 102 Mass. 489; Fisher v. Boston, 104 Mass. 87-93; Hafford v. New Bedford, 16 Gray, 297; Manners v. Haverhill, 135 Mass. 165; Haskell v. New Bedford, 108 Mass. 208, 211; Walcott v. Swampscott, 1 Allen, 101; Benton v. Trustees of Boston City Hospital, 140 Mass. 13, 1 N.E. 836. The fact that the superintendent, and the workmen employed under him, were paid by the city, is immaterial. Barney v. Lowell and Manners v. Haverhill, ubi supra. The mayor and members of the city council, acting as a committee on streets, are public officers, and not agents of the city. Haskell v. New Bedford and Manners v. Haverhill, ubi supra; Thayer v. Boston, 19 Pick. 511; Oliver v. Worcester, 102 Mass. 489. A highway surveyor is not the servant or agent of the town. White v. Phillipston, 10 Metc. 108; Walcott v. Swampscott, 1 Allen, 101; Barney v. Lowell and Manners v. Haverhill, ubi supra. The provision as to the tenure of office of the superintendent of highways is the same as that governing highway surveyors in towns. Acts Mass. c. 613, § 14; Pub.St. c. 27, § 78; Id. c. 49, § 99.

OPINION

C. ALLEN, J.

If a city or town, instead of leaving the duty of keeping the highways in repair to be performed by the officers and in the methods provided by the general laws, assumes to perform it by means of agents whom it may direct and control, it may be held responsible for the acts of those agents. The chief grounds of the town's exemption from responsibility for the acts of surveyors of highways, as stated in Walcott v. Swampscott, 1 Allen, 101, 102, and in later cases, are that their powers and duties are prescribed and regulated by statute; that in the...