Wixon v. The City of Newport

• Decision Date: 21 November 1881
• Citation: 13 R.I. 454
• Parties: SUSIE H. WIXON v. THE CITY OF NEWPORT.
• Court: Rhode Island Supreme Court

13 R.I. 454

SUSIE H. WIXON v. THE CITY OF NEWPORT.

Supreme Court of Rhode Island.

November 21, 1881

A private action does not lie at common law against a municipal corporation, either for the non-performance or for the negligent performance of a public duty imposed on the corporation without its request by general statute, unless it receives or is entitled to receive some privilege or profit in consideration of the duty.

Nor does such an action lie when the duty, not being imposed by statute, is voluntarily assumed under and in pursuance of a general law of the State.

The school laws of Rhode Island create a school system under which the towns are encouraged but not absolutely required to maintain public schools.

A. was injured by a defect in the heating apparatus in a public school of the city of Newport, A. being a pupil in the school.

Held, that the city was not liable for the injury suffered.

Held, further, that the immunity of the city was not affected by the fact that the school-house was built by trustees who, in A. D. 1795, received power to raise money by lottery for certain improvements, the rents and profits of which were to be applied to the building and support of public schools in Newport, and that the school-house was used by the city, without rent and with the consent of the trustees. TRESPASS ON THE CASE. On demurrer to the replications. The facts of the case and the pleadings are sufficiently stated in the opinion of the court.

Francis B. Peckham, Jun., City Solicitor of the city of Newport, in support of the demurrer.

Perce & Hallett, contra .

1. When a duty becomes ministerial, then, although there be no statute giving the action, a municipal corporation is liable for the negligent omission to discharge such duty, resulting in an injury to others. Dillon Municip. Corp. ed. 1881, §§ 1048, 1049, 950, 980; Williams v. Tripp, 11 R.I. 447; Aldrich v. Tripp, 11 R.I. 141; Rochester White Lead Co. v. City of Rochester, 3 N.Y. 463; Nims v. Mayor, & c. of the City of Troy, 59 N.Y. 500; Merrifield v. City of Worcester, 110 Mass. 216; City of Pekin v. Newell, 26 Ill. 320; Barton v. The City of Syracuse, 36 N.Y. 54; Bailey v. The Mayor, & c. of the City of New York, 3 Hill N.Y. 531.

2. Municipal corporations are liable for the improper management and use of their property. Dillon Municip. Corp. § 985; Bailey v. Mayor, & c. of the City of New York, 3 Hill N.Y. 531; Aldrich v. Tripp, 11 R.I. 141; Cowley v. Mayor, & c. of Sunderland, 6 H. & N. 565; Thayer v. Boston, 19 Pick. 511; Oliver v. Worcester, 102 Mass. 489; The Mayor, & c. of Savannah v. Cullens & Wife, 38 Ga. 334.

3. A city or town charged with a public duty, in consideration of valuable privileges, is liable to an individual who suffers special injury from a neglect of the duty. And a city or town which derives an emolument from the exercise of powers conferred upon it is liable for the neglect or unskilful exercise of these powers by its agents, or for the neglect of a duty which is imposed by, or results from, the exercise of them. Aldrich v. Tripp, 11 R.I. 141; Williams v. Tripp, 11 R.I. 447; Mayor, & c., of the City of New York v. Bailey, 2 Denio, 433; Parnaby v. Lancaster Canal Co. 11 A. & E. 223; Mersey Docks v. Gibbs, 4 L. R. 1 H. L. 93; Coe v. Wise, L. R. 1 Q. B. 711; Winch v. Conservators of the Thames, L. R. 9 C. P. 378.

4. A municipal corporation has no more right than a natural person to maintain a nuisance, and is liable for injuries occasioned thereby. The king cannot license a nuisance . Viner's Abr. Nuisance, F; Weet v. The Trustees of the Village of Brockport, 16 N.Y. 161, note; Haag v. The Board of Commissioners of Vanderburgh Co. 60 Ind. 511; City of Petersburg v. Applegarth's Adm'r, 28 Gratt. 321; Brayton v. Fall River, 113 Mass. 218; City of South Bend v. Paxon et ux. 67 Ind. 228; Harper v. The City of Milwaukee, 30 Wis. 365.

5. A person while on the premises of another, by invitation express or implied, is entitled to due care on the part of the owners of the property.

And corporations are bound to keep in safe condition all parts to which the public would naturally go or resort. Oliver v. Worcester, 102 Mass. 489-496; Hannon et al. v. The County of St. Louis et al. 62 Mo. 313; MacDonald v. Chicago & N.W. R. R. Co. 26 Iowa 124-145; Conrad v. The Trustees of the Village of Ithaca, 16 N.Y. 158; Toledo, W. & W. R. R. Co. v. Grush, 67 Ill. 262; Tobin v. Portland, Saco & Portsmouth R. R. Co. 59 Me. 183; Donovan v. Board of Education, 55 How. Pr. 176; Bassett v. Fish, 19 N.Y. Supreme Ct. 209; Wood v. Independent School District of Mitchell, 44 Iowa 27.

6. The plaintiff claims the law to be established:

a . That ministerial acts, even when resulting from public duties imposed by statute, must be done with proper care, or are subject to actions of negligence or trespass.

b . That the powers given by statute are not to be exercised at the peril of the lives or limbs of the people.

c . That all civil duties, imposed or not by statute, must be exercised by corporations as by individuals, with due regard for the safety of health, life, and limb, of all persons, and that such regard becomes more imperative as the recipient becomes less competent to exercise judgment and ordinary care.

DURFEE C. J.

This action is brought against the city of Newport by the plaintiff, a minor suing by her next friend, to recover damages for injuries which she suffered by being scalded and burned in one of the public schools of the city, by the heating apparatus there used, which the declaration alleges was carelessly kept by the city in a defective, unsafe, and dangerous condition, without sufficient guarding or protection. The defendant pleads, among other pleas, a special plea in bar, to the effect that the public school mentioned in the declaration was a public free school, established, kept, and maintained by the city " pursuant to the statute relating to public instruction and public schools, and the keeping of public schools, and the providing of public school-houses for the same, and the necessary fixtures and appendages thereto, and was so established, kept, and maintained by said city for the State and the public benefit, and for public purposes exclusively, as a public duty and not as a corporate duty, and that the plaintiff at said time when, & c., in said place in which, & c., was a young child attending said school for her education as a scholar therein."

To this plea the plaintiff makes two replications which are now insisted on. The first is that the city " did not keep and maintain said school as a public duty enjoined upon it by the statute of the State, but as a corporate duty voluntarily assumed by the city under the provisions of the statute," & c. The second replication recites a resolution adopted by the General Assembly in 1795, under which certain citizens of Newport, who were thereby constituted a board of trustees with perpetual succession, were empowered to raise by lottery a sum not exceeding $25,000, for the purpose of rebuilding Long Wharf, and of building a hotel in Newport, and to receive the rents and profits thereof when built, and, after paying charges, & c., to appropriate the net amount of said rents and profits to the building and support of one or more public schools in Newport for the use and benefit of the children of Newport. And the replication avers that the powers given by the resolution were duly executed by the trustees, who " from the net proceeds and rents of said wharf and hotel did build the school-house in said declaration mentioned, which school-house said defendant has become entitled to and possessed of by force of said privileges and benefits conferred upon said defendant by said resolution." To these replications the city has demurred.

The statutes of this State relating to free public schools do not make it the imperative duty of the several towns and cities to establish and maintain such schools, but create a general school system under which the several towns and cities voluntarily establish and maintain public schools, receiving from the State certain allotments of money to help defray the cost of instruction. The first replication has been framed in view of this peculiarity, the plaintiff's contention being that the city of Newport, having voluntarily undertaken the maintenance of free public schools in the city, is liable for the negligence alleged, whether it would have been liable or not in case the maintenance had been obligatory.

It is settled that a private action does not lie at common law against a municipal corporation for either the non-performance or the negligent performance of any public duty which is imposed on it by general statute without its request, unless the corporation receives or is entitled to receive some privilege or profit, benefit or emolument, in consideration of the duty. Thus in Bigelow v. Inhabitants of Randolph, 14 Gray, 541 it was decided under the law of Massachusetts, that a town which had assumed the duties of school districts was...