Lead Opinion
Opinion by
Plаintiff’s case cannot surmount the harrier of the rule establishing the immunity of municipalities from liability for torts committed by their employes in the course of performance of a governmental function unless a right of recovery is expressly granted by statute.
Shortly after midnight a valuable racing mare was discovered in a helpless condition with one leg wedged in a culvert draining into a gutter at the edge of a public highway in Montgomery County. Whether it was partly on the shoulder of the highway or entirely on private property does not appear. Two police officers, one employed by Springfield Township and the other by Upper Dublin Township, both of which townships border on this highway, arrived on the scene and shot and killed the mare. Plaintiff, the owner of the mare, brought action against the townships to recover the value of the animal. In his complaint he alleged that the officers knew that thе mare was his property but they did not notify him or give him any opportunity to extricate the animal, nor did they make any effort to determine whether the condition of the mare made it necessary to destroy" her.
Both townships filed preliminary objections to the complaint, one of which set up the doctrine of non-liability of the townships for the act of the policemen. The court sustained this objection and plaintiff appeals.
More than a century ago it was held in Fox v. The Northern Liberties, 3 W. & S. 103, that the defendant in that case, an incorporated district, was not liable for a trespass committed by its Superintendent of Police, who was alleged to have illegally seized a horse under a false pretense that its owner was violating the ordinance of the distinct. The court said (p. 106) :
In Elliott v. The City of Philadelphia,
Since these early cases there has followed a veritable multitude of others which, under varying facts, sustained the same doctrine.
It is clear that if the policemen in the present case were not acting within the scope of their authority their employers, the two townships, would not be liable for their acts ;
The decision in Radobersky v. Imperial Volunteer Fire Department,
Judgment affirmed.
Notes
For example: Knight v. City of Philadelphia, 15 W.N.C. 301; Kies v. City of Erie,
It seems that the point where the horse was trapped was оn the Spring-field Township side of the highway; therefore, as far as the Upper Dublin Township policeman was concerned, he was acting beyond his jurisdictional authority, which extended only within the geographical limits of his own township, and on that-ground also the Upper Dublin Township would clearly be exempt from liability.
Dissenting Opinion
Dissenting Opinion by
In the darkness of early morning on October 3, 1953, a valuable thoroughbred racing horse named “All’s Over,” strayed from an enclosure on the land of its proprietor, and, doubtlessly excited over an unexpected freedom, headed for distant highways. At a point close to the boundary line between Springfield Township and Upper Dublin Township, “All’s Over” unwaringly entered into a culvert and there became wedged at a spot about 200 yards south of Dresherton Road. Shortly after this involuntary halting of movement, two policemen arrived — one from Springfield Township and the other from Upper Dublin. 'Without making any effort to dislodge the imprisoned but uninjured animal, and without seeking counsel of its well-
For “All’s Over,” it was now indeed all over.
After their brave deed had been accomplished, the police officers notified the owner, Herbert O. Boorse, who made arrangements to have the horse transported to the University of Pennsylvania Veterinary Hospital where an autopsy was performed. With an unintentional caprice that only added to the tragedy of the occurrence, the examining doctor reported that there was absolutely nothing wrong with the horse except ten bullet holes in its head.
Boorse brought an action of trespass against Springfield and Upper Dublin Townships, asking for $25,000 damages for the loss of his private property. The defendants filed preliminary objections on the ground that townships, being governmental subdivisions, were immune from tort actions for the acts of their policemen. The lower court sustained the objections and entered judgment for the defendants. The plaintiff appealed to this Court which has affirmed the action of the lower court.
A citizen of the United States has been deprived of a valued possession worth $25,000 under circumstances of undoubted wanton negligence, and yet he may not even be heard in Court. The first principle a student encounters as he prepares to fit himself for the practise of the law is that there is no right without a remedy, or, stated in another manner, there is no wrong that may not be corrected in law. But this case presents a wrong which no one can deny, and yet the plaintiff pleads in' vain for a hearing.
The defendant municipality Spxingfield Township resists liability on the ground that it is not responsible for any act of “misfeasance or non-feasance”- of its policemen. Thе Complaint; however; describes an act
In the year 1876, the mayor of Philadelphia was sued for ordering the destruction of property which the mayor claimed was a nuisance and a fire hazard. The jury returned a verdict for the defendant, and the property-owner appealed. Although this Court affirmed the verdict, it specifically declared, through Chief Justice Sharswqod, “that the case was properly submitted to the determination of the jury.” (Fields v. Stokley,
But no jury has here justified the action of the police officers employed by the two defendant townships.
As the mayor in the Fields v. Stokley case pleaded a fire hazard, so also the defendant municipalities here pleaded a traffic hazard. But it is not clear how the
Springfield Township, in its preliminary objections, argues in effect that the presence of All’s Over constituted an abatable nuisance, but it was never established that the horse was on a public highway. The Complaint, the averments of which must be accepted as true, declared that the plaintiff’s horse was lodged in a culvert “off the paved section of the highway.”
Did the policemen here use care commensurate with the danger the defendant municipalities conjure up in thеir preliminary objections? In the case of Herron v. Pittsburg,
In Radobersky v. Imperial Volunteer Fire Department,
Thus, if even fire companies are not immune from' liability when engaged in an operation disconnected from their primary function of extinguishing fires, certainly a municipality should not be excused from responsibility in damages when it maintains police who use firearms for operations extraneous to the purpose for which the firearms were issued.
In Brink v. Borough of Dunmore,
Employing the reasoning invoked in the Dunmore case, why should the defendant townships here be allowed to escape responsibility for the trespasses of their officers? Why shouldn’t there have been a factual adjudication as to whether the policemen had or had not been instructed, either directly or by implication, that they were not to destroy private property where no criminal or civil damage was being threatened?
The defendants’ denial of liability is based on the argument that townships, being subdivisions of government, are immune from liability arising out of alleged governmental functions. If a traveller returning from a Soviet-dominated country were to relate to an American audience having seen two Communist policemen draw guns and slay a horse, and then recite further that tbe owner of the slaughtered beast was denied compensation for the loss of his property, the listeners would undoubtedly voice emphatic indignation and disgust over such a manifestation of unbridled tyranny. Why is a similar act in America enveloped in impeccable legality?
It is the theory of the Majority Opinion, affirming the lower court which sustained preliminary objections to the plaintiff’s Complaint, that a citizen suffering a loss of the character here described is without remedy because the principle of immunity for sovereign power is so imbedded in law that we are power
The Majority Opinion also cited Elliott v. The City of Philadelphia,
For decades now the ghosts of these precedents have been clattering down the highways of the law, and it is about time that some Court stopped them and led them to pasture. Their usefulness on the thoroughfare of lоgic and true justice is over. It is not consonant with twentieth century American justice to say that property may be destroyed by anyone, much less the Stale (the very symbol of correctness in organized society), with legal impunity. The law of nature, compounded of the dictates of the Supreme .Lawmaker and reason emanating from untrammeled intellect, rebels against this antiquated doctrine of irresponsibility, no matter by whom or by what exercised.
The theory of governmental immunity for the tortious acts of governmental representatives, employes and agents is founded upon the presumption that a sovereign power cannot be adjudged in error, and this
However, despite the supposed protection of God, kings were poisoned, waylaid, beheaded and otherwise murdered. Their successors then denounced the acts of the dead sovereigns and they themselves set up a new series of “divinely” inspired acts of robbery and murder. Mankind can stand so much, whereupon the people of a given kingdom rebel, and the divine right of kings is shown to be what it always was, the emptiest pretension and the sheerest nonsense. But even with dethronement and beheadings, there has still lingered around the figure of a king an intangible awe springing from the memory of his absolutism which opened and locked prison gates and which carried sword points in his words. No one approaches even a dead lion with indifference. Thus, despite the fact that America discarded kings nearly two centuries ago and that the English monarch is now but an innocuous geniality, the common law deriving from British sovereigns still proclaims that the sovereign power can do no wrong.
The time has come to bury this legal charlatanry in the grave of its discredited monarchial grandsires. From time to time courageous judges have thrown
The Fox case, supra, was decided in 1841. Many horses have entered the eternal grazing ground of the Last Roundup since that decision. The outer world presents methods of transportation entirely undreamed of by the judges of 1841. Many locomotives of judicial adjudication have demolished the precedent in the Fox case. Nonetheless, it continues to lift its equine head from time to time in presumed authority to decide facts and circumstances in a society of 1954 as far removed and as changеd from 1841 as television is removed from the magic lantern.
Shadows from the rationalization in the Fox case fell across the pattern of reasoning in the case of Hartness v. Allegheny County,
So far as legal precedent is concerned, this exposition is understandable and acceptable, but in the republic of logic and fundamental justice, the decision strides with an imperialistic step. The fact that Hartness was injured through no fault of his own on the very steps of the palace of the law should, in outright fairness, speak a greater reason, rather than, a lesser one, for appropriate redress.
It was not questioned that with a pitch of 60% in a distance of 70 feet, accepted modern precautions would have dictated the construction of a parapet or snowguard on the courthouse roof to imprison wintry accumulations against a precipitate fall upon pedestrians beneath. It is clear that had this icy avalanchе slipped from the crest of the Frick Building across the street from the courthouse and fallen on Leon Hartness’s head, his lawsuit against the proprietors of the Frick Building would have been received in the courts and, with the establishment of negligence on the part of the proprietors, a plaintiff’s verdict would have been sustained. It is not enough to say, in reply to the natural query which follows as to why there should be this discrimination between defendants, that a suit against the Frick Building is a suit against a corporation and a suit against Allegheny County is a suit against the government. In moral justice this is no answer because logically one would have to conclude that Hartness should have a greater reason to recover from Allegheny County, to which he pays taxes for
But it is said that Allegheny County is part of the government, and you cаnnot sue the government. And I query: Why?
As a matter of fact, it is not even true that you cannot sue the government. We know that the government, in one form or another, is sued every day. Allegheny County is the defendant in scores of lawsuits each year. And so is the City of Pittsburgh. And, for that matter, so also is the Commonwealth of Pennsylvania.
The fact that the Commonwealth in civil cases can and does initiate suits as a plaintiff is evidence that it can appear also as a defendant because if it had absolute power it would not need to pass through the medium of the Courts to assert its absolutism. Certainly the Soviet Union never sues to take property. Of course, if the Constitution of Pennsylvania declared that neither the State, nor its subdivisions, was subject to lawsuit, that would end the matter because the Constitution, being the will of the people, can declare anything. But the Constitution has not so stated. If anything, the Constitution would seem to invite the people to a redress of grievances against tortfeasors regardless of identity. In fact, it would be strange indeed if, although one can sue a corporation, bank, railroad, his neighbor, even his brother, sister, father or mother, he could not sue the government. In a government founded on the proposition that all men are created equal, it would be an anomaly that one can obtain redress from everyone but the entity supposed and intended to be answerable to all its citizens.
In a government of checks and balances, with no branch or department supreme over any of the others, it would be extraordinary that the whole of these inter
In 1919 Helen Bell of Pittsburgh entered an elevator in the City-County Building, which is adjacent to the courthouse, mоving southwardly on Grant Street. Because of negligence in the maintenance and operation of the elevator, Helen Bell was severely injured. She sued and obtained a verdict against Allegheny County. Her verdict was affirmed by this Court. In view of the fact that the City-County Building houses not only courts but many county and city functions of a corporate character, this Court declared that “the courts cannot be expected to unscramble the mixed relations in which the parties [the City and the County] find themselves through their agreement.” Here was a suit against the government and the plaintiff recovered because the Court could not unscramble the governmental and proprietary functions of the two governmental subdivisions in the building, although in the Sartness case the Court did unscramble the ice and snow of governmental and proprietary functions, for it was also alleged there that the County carried on business operatiоns in the Courthouse.
In Fox v. Philadelphia,
In Briegel v. City of Philadelphia,
In 1853 the City of Pittsburgh was held responsible because of negligent acts of its agents which caused the destruction of the plaintiff’s steamboat at the City’s wharf. (Pittsburgh City v. Grier,
There are many decisions and statutes which here and there break down the supposed impregnable wall which hedges sovereignty. In 1879 Allegheny County was held liable for the value of 60 barrels of whiskey destroyed by a mob, the liability arising out of the failure of Allegheny County to provide sufficient police protection to safeguard life and property. (County of Allegheny v. Gibson’s Son & Co.,
There is no constitutional prohibition against governmental responsibility for the acts of its agents in failing to offer adequate and proper police protеction, or in failing to safeguard the public against injury due to negligence. Municipalities are regularly sued because of defective streets, improper construction of roads and buildings, faulty maintenance of parks, etc., etc.
There are, on the other hand, innumerable decisions to the effect that the government cannot be sued. These two lines of cases have created indescribable confusion in the law. We have seen that Allegheny County was not liable when snow and ice engulfed Leon Hartness because the wintry cascade departed from a roof which covered the criminal and county courts, the county commissioners’ offices and so on, but we have noted also that Allegheny County was held liable when Helen Bell Avas injured in an elevator in a building which houses all the Common Pleas Courts of Allegheny County, all the Orphans’ Courts of Allegheny County, and the Superiоr and Supreme Courts of Pennsylvania as well!
There have not been lacking instances where, from the same set of facts, tAvo decisions have emerged. In 1890 Maria Bertha Kies, living in Erie, Pennsylvania, fell before the doors of a fire engine house which suddenly and violently opened across the pavement on which she was walking. She brought an action ■ in. trespass .-.against the •City, of. Erie,, basing her action.- on
In Scibilia v. Philadelphia,
But of what type of rubber is the fence built which divides the governmental acreage of a municipality from its corporate or business acreage? An excursion through the Pennsylvania State Reports will show that this fence is one of extreme mobility and elasticity. The reason for such flexibility in the application of certain principles of law to established circumstantial situations is undoubtedly due to the fact that here and there judges seek to break the strait jacket of arbitrary precedent, and apply reason and logic to situations which demand-moral justice. These judges refuse a stultification of principle in blind adherence to insupportable precedent and intolerable anachronism.
In the- Scibilia case the plaintiff was injured by a city truck loaded with ashes Which were being conveyed
But in the case of Hill v. Allentown Housing Authority,
Although the Allentown decision was handed down on .March 23, .1953,- this Court , only two months later
But in the case of F. J. Kress Box Co. v. Pittsburgh,
Although this Court cited with approval the Kress decision in the Allentown case, it summarily repudiated it in the Titusville case!
In 1941 the Superior Court of Pennsylvania declared (Krepcho v. Erie,
But in the sea of modern decisions, the Bcibilia case is no longer a trustworthy lighthouse. While hauling
Many municipalities, under lawsuit because of accidents resulting from municipal activities, point to the Scibilia case as a protector against liability. But in Reichvalder v. Boro. of Taylor,
Chief Justice Moschzisker himself dimmed some of the lamps in the Scibilia lighthouse by stating: “. . . it must be admitted that in these days, when governments are constantly assuming new duties for themselves and putting additional powers at the disposal of their agencies, the demarcation between what are purely public functions within the police power and what are not, is becoming increasingly difficult to observe.”
Nor does the Scibilia lighthouse offer much aid to navigators in the law when Chief Justice Moschzisker points out that much of the illumination in the prece
Is the maintenance of sewers a governmental function or a corporate function of a municipality? Certainly, if the reasoning in the Seibilia case is valid, the operation of the sewers is a government function because indubitably the proper disposal of sewage is one of the most vital operations for the preservation оf the health of any community. Yet, this Court held in Gemmill v. Calder,
If municipalities are free from liability, under the theory of governmental functions, in hauling garbage, why are they not free from liability in the construction, maintenance and repair of streets? On what basis of common sense can it be said that the maintenance of highways and roads, the very arteries of the body of the Commonwealth, is not a governmental function, but the hauling of garbage is a governmental function?
If Leon Hardness had escaped the fall of snow from the roof of the courthouse and had later tripped over that same snow in the street in front of the courthouse (provided it had formed into ridges) he could then sue the City for negligence in maintaining the streets. What type of legal logic is it that can hold a governmental subdivision liable for an accumulation of snow on the street where it at least can be seen by a pedestrian but denies recovery when the governmental sub
What kind of law and justice is it that says the hauling of refuse is a matter of preserving the health of the community and then in that operation cripples Giuseppe Scibilia, leaving him writhing on the streets without redress? What about Ms health?
What fairness and right dealing in law is it that approves the adage there is no wrong without a remedy, but yet leaves Martin J. Kunz remediless on the hot ashes of the incinerator in Titusville because the destruction of garbage is a governmental function?
It is because of these amazing inconsistencies in the decisions of our Court and in other Courts that Mr. Chief Justice Horace Stern referred to the conflicting cases as a “welter of decisions.” (Hill v. Allentown, supra)
Mr. Justice Linn, in the case of Honaman v. Philadelphia,
In Cousins v. Butler County,
In Briegel v. Philadelphia,
Advocates of the immunity doctrine have argued that to hold the government responsible in tort actions would impose a great burden on the government’s treasury. Such an argument offends against logic almost as much as it does against honorable conduct in the affairs of man. To say that everyone should be held liable for his wrongs except the government is to argue for a double standard of morality that is simply intolerable in a democracy.
Nor would government tort responsibility impose the crushing burden these alarmists would portend. Railroad, street car, taxicab, road building and construction companies are defendants on a much larger scale than a governmental subdivision would ordinarily be. And as the costs of trespass litigation- are absorbed into the normal operation costs of a private corporation,-they- could and would: be added; to- the' budgets of governmental subdivisions and municipalcorporations.
It has even been suggested that with governmental tort - responsibility,; the number - of suable -accidents would increase. Allowing for a certain amount of cupidity and covetousness in mankind, (a fact no-one .denies) I refuse to accept that, because of a newly acquired -right Jx) recover, for personal-and crippling
A grave and solemn responsibility rests, as I view it, on the Supreme Court of Pennsylvania, to bring order out of confusion, logic out of sophistry, reason out of pedantry, law out of dogma, and justice out of injustice. While legislative intervention would be welcome, it is not imperative, nor indeed preferable to judicial clarification. I do not mean by this that the courts should ever bring into being rights and liabilities not already in the body of the law through statutory or common law creation. Judicial legislation, I have had occasion to say more than once as a member of this Court, is a usurpation of powers, but there is no possibility of any intrusion into the jurisdiction of the General Assembly in our doing what I believe is required here. We have seen that governmental responsibility for accidents arising out of negligence in the construction and maintenance of streets аnd highways is not a matter of statutory mandate. We have observed illustrations of municipal liability resulting from “historic reasons” rather than from “general rules or by the process of legal or logical deductions therefrom.” (Chief Justice Moschzisker in Scibilia, supra, p. 556).
The field is already open for action by this Court. Nor is it á matter of cataloging precisely under what circumstances the government is responsible' for the negligent acts of its agents, employes or representatives. It would bé enough to declare, as in the case before us, that where the Complaint avers circumstances which, if believed, would requiré the governmental subdivision' to offer- -an' explanation, th¿- -mimicipali-ty
The plaintiff in this case, Herbert C. Boorse, is entitled to know how and why two men carrying every indicia of authority of their respective masters, specifically, Springfield Township and Upper Dublin Township, destroyed his property. Chief Justice Siiakswood very properly stated in the Fields v. Stokley case, supra, that the official position of the defendant there (mayor of Philadelphia,) did not per se relieve him from personal responsibility for ordering the destruction of the plaintiff’s property simply because he claimed it was a fire hazard. The jury however sustained his position and he was thus justified in his “alleged trespass.” But no jury has exculpated the two Townships here from responsibility for the death of All’s Over. Nor, as I view it, has reason, intrinsic justice or the law itself cloaked with vindication the action of the lower court in sustaining the preliminary objections which summarily ousted the plaintiff from Court. It was not only Herbert C. Boorse who was rebuffed by that eviction. The rights of personal property generally have sustained an equally staggering blow by the decision in this case.
All italics, min».,;