Alcorn v. City of Philadelphia

44 Pa. 348 | Pa. | 1863

The opinion of the court was delivered, by

Thompson, J.

The officer for whose dereliction it is attempted to hold the city, was a local functionary authorized by statute, not by ordinance, elected by the people of a defined district, and not subject to removal by the corporate authorities. Notwithstanding this, it is claimed that the city is answerable to the plaintiff for alleged negligence on the part of the surveyor, resulting in a mislo'cation of the lines of his lot, in which the city corporation had no concern or control.

Without there is something springing out of the relationship between the surveyor and the city corporation, sanctioned by legal principles, local custom, or usage, which wdll constrain us to adopt the conclusion contended for by the plaintiff’s counsel, there being no statute which does so, we will not be likely to do so, considering it as a case of the first impression. The doctrine of respondeat superior cannot, I think, be invoked to aid a case of this kind. It applies most generally to cases of domestic servants, and possibly it may have gone beyond this, if we use the term in its popular sense. It rests, however, certainly on the fact that the servant is of the master’s selection, and is by him appointed to do the particular work or perform a defined duty, although not under his direct superintendence. Now, in the case in hand, the selection of the officer -was not by the corporation as a corporation, but by the people in their sovereign capacity. Nor was the surveyor directed or commanded by the corporation to perform the services of which the plaintiff complains. He did it in pursuance of the law of the statute. Unless, therefore, we disregard these well-settled principles, constituting the relation of master and servant, we cannot give effect to the consequences which do not flow from them, and render a party liable for them, although they do not exist in his case.

I have carefully examined the various statutes on the subject of' city regulators or surveyors, from the Act of 1721 down to and including the Act of 1856, but will not encumber this opinion with a digest of them. They all show, what some of them express, that they were established to prevent “ irregularities” in the location of foundations for buildings, party-walls, and the lines of lots for individuals, and to prevent “ controversies in regard thereto, and to lay out streets, &c., for the city.” Irregularities in surveys are supposed to be best prevented by having designated officers to make them, and “ controversies” obviated by making their acts and awards final, unless appealed from. To designate officers to make surveys for each district, and require them to keep offices where they might be found, and where the plans of the city .might he seen, was a great convenience to the people: but as they were to be called on by each individual requiring their services, they thus would become the agent of the party so employing them, and not the agent of the city in that business, and consequently liable to the party thus employing them for any negligence in the performance of their duty. What seems to me a conclusive consideration in this question is that the city had no right to direct the surveyor to perform the work in any particular way, nor could" they correct it if wrong, or correct it in any manner whatever. The only mode pointed out for correction of mistakes or errors is by an appeal to the judicial tribunals either directly or indirectly. For negligence, no doubt, the officer would be answerable to the party injured by it, but not, I apprehend, for an error of judgment. That must be corrected as just stated.

It is supposed that cities and townships, being liable in their corporate capacities for the neglect of their officers to repair the highways, as held in Dean v. Milford Township, 5 W. & S. 545, and Erie City v. Schwingle, 10 Harris 384, and in more recent cases, sanctions a recovery in this case. We do not think so. Distinctions exist and must be observed where duties and obligations differ, although they may have their origin in the same source. Townships and cities are bound to keep up their highways, for they open them, and invite travel upon them, and are the exclusive authority to raise the money to construct and repair them, and hence a party injured by reason of neglect to repair, may look directly to the party bound to repair. But neither city, county, or township is required or furnished with the means to survey people’s lots, or lay out their foundations for buildings or party-walls. This is not a public duty; it is private, and they are not bound by virtue of their corporate capacity to do it, and there is no statute requiring it to be done. Public law has established the office of surveyor for the performance of certain duties, and when, as in the case in hand, they are of a private nature, if, in the manner of performing them, injury ensues from negligence or unskilfulness, the party employing the officer must look to him for redress.

There are many local offices, and some of them partially municipal in their functions, established for the convenience of individuals composing society, as well as society in its aggregate or corporate character; such as aldermen, justices of the- peace, constables, sheriffs, county surveyors, and the like ; but we never heard of the district for which they are elected being held answerable for-their acts or omissions. I do not find anything in ordinary municipal incorporations, and nothing in that of this city, to change this general principle of non-liability; nor in the law applicable to municipal corporations, where the relation of principal and agent does not exist in fact. Where private parties are injured by the carelessness or negligence of any such functionary, the redress is had directly from the wrongdoer. So we think it must be in a case like this. We speak not of a case where there is security, for then it may be upon the bond of the officer and his sureties. This system of surveyors or regulators has been in force for over one hundred, and forty years in this city, and we find no adjudicated case of a recovery such as is claimed here. "It can hardly be supposed that this is the first time that occasion has arisen inviting the trial of the experiment; but we may suppose rather that no one has before thought it possible to succeed in it.

When Amos Styles, the surveyor complained of here, was elected, there was no law which required him to give security for the faithful performance of his duties. But I do not think we need discuss this branch of the case, even supposing that security might have been required of him for the faithful performance of all his duties, public and private, which I think ought to be the rule, if the law will permit it, as I do not see there was a word of evidence going to show that the plaintiff was injured for want of the security. The point reserved below was whether, upon all the evidence in the case, the plaintiff was entitled to recover. Now although it is by the 13th section of the Act of 1836 made the duty of councils to “regulate the survey department, and take security from, and prescribe the duties of the district surveyor,” still there could be no recovery for the omission, unless it were shown in some way, that it contributed to the injury of the plaintiff.

We do not mean to decide any question about the security to be taken, and for whose use it will enure when taken. We have in this last remark stated the case hypothetically; that is to say, if the city was bound to take security from Styles, and did not do it, it was necessary that the plaintiff should have shown when and how he was injured thereby. This he has not done. And for all these reasons,

The judgment is affirmed.