Smith v. City of Rochester

Full title: RICHARD SMITH, Appellant, v . THE CITY OF ROCHESTER, Respondent

Court: Court of Appeals of the State of New York

Date published: Mar 25, 1879

76 N.Y. 506 (N.Y. 1879)

Opinion

Argued February 14, 1879

Decided March 25, 1879

John H. Martindale, for appellant.

James Breck Perkins, for respondent.

MILLER, J.

The doctrine is well settled, that municipal corporations are within the operation of the general rule of law, that the superior or employer must answer civilly for the negligence or want of skill of an agent or servant in the course of their employment, by which another is injured. It is essential, however, to establish such a liability that the act complained of must be within the scope of the corporate powers, as provided by charter or positive enactment of law. If the act done is committed outside of the authority and power of the corporation as conferred by statute, the corporation is not liable, whether its officers directed its performance, or it was done without any express direction or command. It is ultra vires, and cannot be made the basis of an action for damages for that reason. These general principles are fully sustained by the authorities. (See Dillon on Mun. Cor., §§ 766, 767, and authorities cited.)

The liability of the defendant is sought to be maintained upon the ground that, although the defendant's horses and hose cart were purchased and designed for public service in the fire department, and were generally employed in that service, it was competent for the defendant to employ them in some other service, not of a public, but purely of a private character, so as to render the defendant liable for damages arising from their negligence. This position rests upon the ground that the corporation is liable whenever it uses the property in a service which is not of a public nature authorized by law, and its orders impose upon servants who have the charge and control of such property the duty of obedience, and render the corporation responsible for the negligent misconduct of the servant, as much as that of any other superior, or as for any other malfeasance.

We are referred to some authorities which, it is claimed, uphold the doctrine contended for; but we think that they do not sanction any such principle, as is manifest from an examination of the same. In Eastman v. Meredith, 36 N.H., 285, the action was for an injury caused by the giving away of the flooring of a town-house erected by the town, which was imperfectly constructed; and it was held that no action would lie against the town. The dictum of PERLEY, Ch. J., in the opinion, as to the liability of corporations for private injuries caused by improper management, does not go to the extent of holding that they are liable for acts done by its officers or managers beyond the scope of the powers conferred by law; nor was it intended, we think, to hold that, in the latter case, the corporation was liable when the property was not employed for the purposes and objects for which it was designed. So also the remarks in Bailey v. The Mayor (3 Hill, 531), of NELSON, Ch. J., which are cited to the effect that municipal corporations, in their private character as owners and occupants of land, must be regarded the same as individual owners, and dealt with accordingly, must be restricted, I think, to apply only to cases where the officers do not exceed their powers. In the case of Neuert v. City of Boston ( 120 Mass., 338), where the corporation was held liable for damages occasioned by the negligent suspension of a telegraph wire for the use of the fire department, the wire was for the benefit of and used by the corporation, attached to a building belonging to the city, and was owned and maintained for the use of the fire department. It had also caused or authorized its removal, and hence, the injury occurred while the city had control over it and its agents were acting by its authority. In Lee v. The Village of Sandy Hill ( 40 N.Y., 442), the town officers were acting under a resolution of the board of trustees to remove obstructions from the street. They made a mistake and committed a trespass, but acted in entire good faith in the performance of a public duty. As they exceeded their powers while engaged in an act lawful in itself, it was held that the corporation was liable, whether the trustees were regarded as mere agents of the corporation, or the trespass was deemed the act of the corporation itself. The case differs from one where there is an absence of authority from the beginning and the agents were acting entirely beyond their powers. The rule laid down in Dillon on Corporations, § 780, that municipal corporations are liable for the improper management and use of property, in the same manner as private corporations and natural persons, must be regarded as relating to acts done which are lawful in themselves, where a liability is created by reason of the result which flows from the manner in which such acts are performed, or for a neglect of duty in the lawful care and management of the public property, and not to cases where there is no authority whatever to bind the corporation, and the injury done is caused by an act which is not sanctioned by law. The remarks cited from Jewett v. The City of New Haven ( 38 Conn., 386), that where the question is whether the principle of respondeat superior applies to a municipal corporation, it should distinctly appear, in order to hold them liable, that the service in which the party doing the mischief was engaged at the time was private and not public, were not required for the decision of the case; and if they can be considered as sustaining the doctrine contended for, cannot be regarded as sound law. No reported case sustains the principle, that when the common council of a municipal corporation exceed the powers conferred by the charter of the city they represent, by using the property of the city, as was done in this case, for purposes not recognized by law, that the corporation is answerable for negligence in the management of such property. Such a rule would place in the hands of the members of the common council of a municipal corporation a power to create liabilities of the tax-payers, which is without any precedent or authority of law, and which might be liable to great abuse. The decisions of the courts are, we think, in a contrary direction, and the cases establish, beyond question, that to authorize the conclusion that the order to the driver of the hose cart was justified by the common council, it should appear that there was express authority in the charter, or that it was done in pursuance of some general authority to act for the corporation in reference to the matter. The rule on the subject is well stated in the opinion of SHAW, Ch. J., in Thayer v. The City of Boston (19 Pick., 516), as follows: "As a general rule, the corporation is not responsible for the unauthorized and unlawful acts of its officers, though done colore officii; it must further appear, that they were expressly authorized to do the acts, by the city government, or that they were done bona fide in pursuance of a general authority to act for the city, on the subject to which they relate; or that, in either case, the act was adopted and ratified by the corporation." This rule is upheld in Lee v. The Village of Sandy Hill ( supra), in the opinion of the court, as well as in other decisions. See The Mayor v. Bailey (2 Den., 433); Buffalo and Hamburgh Turnpike Co. v. The City of Buffalo ( 58 N.Y., 639); Anthony v. Inhabitants of Adams (1 Metc., 284); The Mayor v. Cunliff (2 Comst., 165); Ham v. The Mayor ( 70 N.Y., 459); Morrison v. Lawrence ( 98 Mass., 219). The case last cited is directly in point. The action was for an injury sustained by the plaintiff's intestate by the negligent firing of a rocket by the defendant's servant. A resolution had been passed by the common council under a statute authorizing the celebration of the Fourth of July, and the yeas and nays were not taken, as required by law; and it was held, upon this ground, that there was no claim against the corporation, without passing upon the question whether the city could be held liable, even if the purchase of the fireworks was duly authorized. If the corporation would not be liable, under such circumstances, no liability would be incurred in the case at bar, where there is an entire want of authority. If it had power to order the driver of the hose cart, it could only do so in accordance with the statute granting such power; and if it had no such power, the order was clearly void, and the corporation was not liable for the consequences arising from its being carried into effect.

In this case, no power was conferred upon the common council to employ the hose cart of the corporation for any such purpose; nor do we think that it could be justified, in pursuance of any general authority relating to the subject. Certain provisions of the city charter are relied upon as containing such authority, and it is claimed to exist under section 40, subdivision 4, which confers power to regulate sports. We think that it is quite obvious that it was not intended by the Legislature to authorize the common council to do anything more in this respect than to provide regulation for such amusements as would be likely to be given in the city by other parties. It clearly could not have been designed to authorize this body to participate in or to conduct such amusements on behalf of the corporation; nor does the control vested under this section over the personal property of the city, with power to make such orders as the common council deemed proper, confer any authority to perform any act which was not essential for the preservation and lawful use of such property. The provisions in the charter, contained in sections 222, 223 and 224, relating to the fire department, also fall far short of conferring any such authority. Assuming, however, that the common council, in making an order for a midnight parade of the fire department to celebrate the centennial anniversary of the nation, had authority under the provisions last cited, the difficulty in maintaining the plaintiff's action is the well-settled rule, that a municipal corporation is not liable for the negligence of firemen while engaged in the line of their duty: (Dillon on Mun. Cor., § 774; Hofford v. New Bedford, 16 Gray, 297; Fisher v. Boston, 104 Mass., 87; Jewett v. City of New Haven, 38 Conn., 368; O'Meara v. The Mayor, 1 Daly, 425.)

The exemption from liability, in most of the cases last cited, is placed upon the ground that the service is performed by the corporation for the public good, in obedience to law, in which it has no particular interest, and from which it derives no particular benefit in its corporate capacity; that the members of the fire department are not the agents and servants of the city, for whose conduct it is liable, but act as officers charged with a public service, for whose negligence, in the discharge of official duty, no action lies against the city, and the maxim of respondeat superior has no application.

It follows that the common council exceeded its power, in requiring that the fire apparatus and hose carts belonging to the city should be driven along the streets at midnight, and the negligence of the driver, in causing the injury to the plaintiff, was an act for which the defendant was not responsible.

The judgment should be affirmed.

All concur, except RAPALLO, ANDREWS and EARL, JJ., dissenting.

Judgment affirmed.