Bigelow v. Inhabitants of Randolph
80 Mass. 541
Mass.
1860
Check Treatment
Metcalf, J.

It wаs said by Chief Justice Parsons, half a century since, in Riddle v. Proprietors of Locks & Canals, 7 Mass. 187, and adjudged by the full court in Mower v. Inhabitants of Leicester, 9 Mass. 247, that a private action cannot be maintained against a town, or other quasi corporation, for a neglect of corporate duty, unless such action be given by statute. And so it has ever since been held by this аnd other courts. This rule of law, however, is of limited application. It is applied, in case of towns, only to the neglect or omission of a town to perform those duties which are imposed on all towns, without their corporate assent, and exclusively for publiс purposes; and not to the neglect of those obligations which a town incurs, when a special duty is imposed on it, with its consent, exрress or implied, or a special authority is conferred on it, at its request. In the latter cases, a town is subject to the same liabilitiеs, for the neglect of those special duties, to which private corporations would be, if the same duties were imposed оr the same authority were conferred on them — including their liability for the wrongful neglect as well as the wrongful acts of their officers and аgents. See the cases referred to in Eastman v *544Town of Meredith, 36 N. H. 295-297, and in Conrad v. Town of Ithaca, 16 N. Y. 158-174.

For neglect of the duty imposed on towns to keep highways, town ways, causeways and bridges ‍‌​‌​‌‌‌‌‌‌​‌​​​​‌​‌‌‌​‌​‌‌​​​‌​‌‌‌​‌‌​‌‌​​​‌​‌‌‌‍in rеpair, and safe and convenient for travellers, the Rev. Sts. c. 25, and St. 1850, c. 5, give an action to any person who, by reason of such neglect, receives an injury in his person or property. But it is clear that the facts in the present case do not bring it within the statute provisiоns concerning ways.

Nor can this action be maintained for the town’s neglect of its corporate duty concerning the keeping of schools and the providing of school houses — a duty imposed for public purposes exclusively, and without its corporate assent — because no statute gives a private action against a town for an injury caused by a neglect or violation of the school laws, except by St. 1845, c. 214, to a child who is unlawfully excluded ‍‌​‌​‌‌‌‌‌‌​‌​​​​‌​‌‌‌​‌​‌‌​​​‌​‌‌‌​‌‌​‌‌​​​‌​‌‌‌‍from public school instruction.

In order, therefore, to maintain this action, some other legal ground than the defendant’s neglect of.corporate duty must be shown.

The plaintiff’s counsel cited, in support оf the action, cases in which municipal corporations were held liable for neglect of corporate duty, under the distinction above stated, to wit, where a special duty bad been imposed on them, or a special authority had been granted tо them. Those cases are therefore inapplicable to this.

The counsel also cited the case of Thayer v. City of Boston, 19 Pick. 511, where it was decided that, for a tort, which was the effect оf malfeasance, and not of mere neglect or nonfeasance, the city was answerable, if the tortious acts were аuthorized or ratified by the city, or by its officers who were empowered to act for the city upon the subject to which the tort related. Manifestly ‍‌​‌​‌‌‌‌‌‌​‌​​​​‌​‌‌‌​‌​‌‌​​​‌​‌‌‌​‌‌​‌‌​​​‌​‌‌‌‍that decision is not an authority for the maintenance of this action. For it is not shown, in this case, that the making of the excаvation in the school house yard was in itself a wrongful act. The purpose for which the case states that it was made, rather leads to the presumption that it was a proper *545and justifiable act at the time it was done. In the other case, the acts for which thе city was held answerable in damages were wholly unwarranted, and wrongful ab initia. Besides ; if it were certain that the making of the excavation wаs wrongful — a mere malfeasance — the town never authorized nor ratified it; nor does it appear that it was authorized or ratified by any ' officers or agents of the town, who were empowered to act in providing the school house. The case states that the excavation was made “ under the authority of the selectmen of the town.” But we understand this to mean, not that the selectmen had legal authority in the matter, but that they gave direction or consent that - it should be made. What authority they had, more than any other men in thе town, is not shown.

The sole ground of this action, therefore, is the neglect by the defendants, of their corporate duty respecting school houses —- their neglect to adopt suitable precautions to secure those who had a right to frequent the school hоuse yard, ‍‌​‌​‌‌‌‌‌‌​‌​​​​‌​‌‌‌​‌​‌‌​​​‌​‌‌‌​‌‌​‌‌​​​‌​‌‌‌‍from falling into the excavation. And we are not disposed to deny that although they were not bound by statute to preparе a school house for the district, yet that when they assumed to do it, as they were authorized by the Rev. Sts. c. 23, § 32, they incurred all the obligations and liаbilities to which they would have been subject, if they had been required, by statute, to prepare the house.

The question then is, whether the defendants are answerable, on the facts in this case, for the special injury sustained by the plaintiff through their neglect to provide а safe place for her attendance at school. We are of opinion that they are not. The wrong which the facts shоw is not malfeasance, but mere neglect of that kind of corporate duty, for the neglect of which, as we have seen, a town is liable to a private action only when it is given by statute.

The case of Eastman v. Town of Meredith, 36 N. H. 284, seems "to us not to be distinguishable, in principle, from this. In that case it was decidеd that though a town house, which was erected by the town, was ‍‌​‌​‌‌‌‌‌‌​‌​​​​‌​‌‌‌​‌​‌‌​​​‌​‌‌‌​‌‌​‌‌​​​‌​‌‌‌‍so defectively constructed, that when a town meeting was held in it, the floor brоke down and a voter was thereby injured, yet he could not maintain an action against *546the town to recover damages for the injury. The legal principles and the numerous decisions, relating to the question there raised, were ably and fully discussed by Chief Justice Perley. We refer to his thorough discussion, which has made it needless for us to prepare an expanded opinion in the present case.

The plaintiff’s counsel argued that the case in 36 N. H. should be distinguished from this, inasmuch as in that case the town and its officers supposed, and had а right to suppose, that a safe town house had been provided ; whereas, in this case, the town and its officers knew, for months, that the school house yard was unsafe. And if we were at liberty to decide the case upon merely ethical principles, as apрlicable to the conduct of individuals, we might recognize this distinction between the two cases. But the common law, which is our only guide in this cаse, makes no such distinction. That law exempted towns from liability for a private injury caused by an unsafe road, as well when they knew as whеn they were ignorant of its condition. The statute subjects them to that liability only when they have notice that the road is unsafe. The ethics of the liability and exemption are confined to the statute.

Judgment for the defendants.