Brown v. District of Columbia

29 App. D.C. 273 | D.C. | 1907

Mr. Chief Justice Si-ibpard

delivered the opinion of the Court:

The right of a court of the United States to direct a verdict upon the facts stated by counsel as constituting the plaintiff’s case is established beyond question. Oscanyan v. Winchester Repeating Arms Co. 103 U. S. 261, 263, 26 L. ed. 539, 541. In that case a verdict was directed for the defendant upon the opening statement of the plaintiff’s counsel, which contained a fact relating to the terms of the contract sued on, not disclosed in the declaration, but clearly showing the illegality of the alleged contract. In affirming the judgment, it was said: “The power of the court to act, in the disposition of a trial, upon facts conceded by counsel, is as plain as its power to act upon the evidence produced. The question in either case must be whether the facts upon which it is called to instruct the jury be clearly established. If a doubt exists as to the statement of counsel, the court will withhold its directions, as where the evidence is conflicting; and leave the matter to the determination of the jury. In the trial of a cause the admissions of counsel as to matters to be proved are constantly received and acted upon. They may dispense with proof of facts for which witnesses would otherwise be called. They may limit the demand made or the set-off claimed. Indeed, any fact * * * admitted by counsel may be the ground of the court’s procedure, equally as if established by the clearest proof. And if in the progress of a trial, either by such admission or proof, a fact is developed which must necessarily put an end to the action, the' court may, upon its own motion or that of counsel, act upon it and close the case. * * * Of course, in all such proceedings, nothing should be taken, without full consideration, against the party making the statement or admission. He should be allowed to explain and qualify it, so far as the truth will permit; but if, with such explanation and qualification, it should clearly appear that there could be no recovery, the court should not hesitate to so declare and give such direction as will dispose of the action.’’

There was no difficulty in that case in respect of mistake, ambiguity, or want of completeness in the opening statement, which admitted a fact that discharged all possible right of recovery in the action. It was in the interest, therefore, of the speedy administration of justice, to act upon the admission when deliberately made, and avoid the delay that would be caused by the production of the evidence.

The cause of action in the case at bar differed materially in character from that in the case cited, and did not so readily admit of the statement of an independent fact, undisclosed in pleading, upon which alone the ease could be made to turn. Moreover, the counsel for plaintiff, before the court took final action, stated that he wanted to prove all the allegations of the declarations. This was somewhat qualified by the last offer of counsel heretofore recited. It is to be noted, also, that counsel did not offer to withdraw, correct, or further qualify any declaration of the case stated in opening. Nor is there any perceptible conflict between the facts alleged in the declaration and those of the opening statement. The latter merely added some specific facts making clear and extending the allegations that were general.

We think it just to the appellant, under all the circumstances, to consider both the allegations of the declaration and the facts stated by counsel, in determining whether the court erred in directing the verdict.

The District of Columbia has had long existence as a municipal corporation under acts of Congress providing for its government, and, from time to time, conferring special powers and imposing certain duties upon its executive officers; of all of which we necessarily take notice. Its municipal organization is of a peculiar character. There is no general organic law covering all of the ordinary powers usually conferred in the creation of municipal corporations in the several State's, — no formal municipal charter, so to speak. There is no special municipal council or legislative body. Congress possesses all the powers of a local legislature, and is under limitations in the matter of their delegation. The commissioners are ministerial officers. Sometimes' Congress enacts laws relating to strictly municipal affairs, and sometimes it delegates to the commissioners the power to enact police regulations respecting specified subjects. The commissioners have no authority to raise revenues for the support of the local government, and those raised by the direct authority of Congress are not turned over to them for appropriation and expenditure at discretion. Walter v. Macfarland, 27 App. D. C. 182, 185.

Municipal corporations in general aré invested with two kinds of special powers, and charged with two kinds of duties; the one kind is private, that is to say, merely municipal and for special local purposes and benefits; the other of a political or governmental character, for the general public welfare. 2 Dill. Mun. Corp. sec. 966.

In the language of Folger, J.: “One is of that kind which arises from the grant of a special power, in the exeroise of which the municipality is as a legal individual; the other is of that kind which arises or is implied from the use of political rights under the general law, in the exercise of which it is as a sovereign. * * * The former is not held by the municipality as one of the political divisions of the state; the latter is.” Maxmilian v. New York, 62 N. Y. 160, 164, 20 Am. Rep. 468.

Notwithstanding the peculiar nature of the municipal organization under consideration, considerable latitude in respect of its liability for injuries resulting from negligence in the performance of its municipal duties has long been recognized. It has been held liable for a defective bridge (Weightman v. Washington, 1 Black, 39, 17 L. ed. 52) for unsafe streets (Barnes v. District of Columbia, 91 U. S. 540, 23 L. ed. 440; District of Columbia v. Woodbury, 136 U. S. 450, 34 L. ed. 472, 10 Sup. Ct. Rep. 990) ; and for the maintenance of a nuisance (Roth v. District of Columbia, 16 App. D. C. 323). But in no case has its liability been declared for failure to perform a general governmental duty. Roth v. District of Columbia, supra, that is strongly relied on by the appellant, enounces no such doctrine. Plaintiff in that case owned and resided in premises, adjacent to which the District of Columbia erected and maintained a stable for vehicles and horses used by the police force; and the proof was that, by reason of the manure and filth suffered to accumulate in said building, offensive and unwholesome odors emanated therefrom, and swarms of flies and other vermin were produced, which penetrated plaintiff’s house, destroying her comfort, and endangering her health and that of her family. In affirming her right to recover damages for the nuisance, Mr. Justice Morris, who delivered the opinion of the court, took care to say: “In the exercise of the powers conferred by the Sflite upon municipal organizations, the distinction between purely municipal functions and governmental duties is undoubtedly well established, with the resulting consequence that, while the municipality is held to liability in the courts of law in respect of the former, no such liability can be enforced in respect to governmental duties. * * * If it be granted that the duties of the police force are mainly, and even exclusively, public and governmental, it does not follow, upon any principle of sound reasoning, that the houses to which they resort when they are not in the performance of any such duty, or the appliances which are contained in such houses, should be permitted to become a nuisance detrimental to health. The performance of their public duties does not require the perpetration of a nuisance by them. On the contrary, the abatement of nuisances is part of their duty, and part of the duty of the municipality; and we would regard it as an absurdity to assume that their public duties could not be performed without the commission of a nuisance.”

The fire department of the District of Columbia was established by authority of Congress, and is maintained by special appropriation of money, for a. general public purpose. Houses for the keeping of engines, and horses to draw them wThen needed, and of other appliances, as well as for the occupation of the firemen by day and by night, were absolutely necessary, and were erected through appropriations for the particular purpose. These houses were not intended or expected to be places of public resort for entertainment or amusement. The windows therein opening upon the public streets were intended to give light for the convenient use of the houses, and not to be used as places of observation of public processions. The particular house was in no sense a nuisance or a menace to the public, either in respect of construction or maintenance. The openings in the floor of the second story, where the firemen slept or rested, were necessary parts of the construction and uses of the house, devised to give aid in the rapid equipment and despatch of the engines and other appliances, when called by fire alarm. Speedy despatch is an essential requisite of an efficient service. All modern fire-engine houses are provided with similar openings. Whether these openings were provided with guard rails at the time of the injury, or the same could have been provided and maintained without interfering with the object of their construction, is an immaterial question. The firemen, by entering the service, assumed the consequent risk. People not in the service, whether related to the firemen or not, had no right of entry and occupation; and the firemen had no authority to extend the privilege.

By the great weight of authority, the maintenance of a fire department is in the nature of a general public duty, as contra-distinguished from those duties purely municipal and local; and the employees thereof are not mere agents or servants of the municipality, but, rather, officers charged with a public service. In consequence it is held that the maxim, Respondeat superior, has no application. Fisher v. Boston, 104 Mass. 87, 94, 6 Am. Rep. 196; Wilcox v. Chicago, 107 Ill. 334, 47 Am. Rep. 434; Grube v. St. Paul, 34 Minn. 402, 26 N. W. 228; Frederick v. Columbus, 58 Ohio St. 538, 546, 51 N. E. 35; Smith v. Rochester, 76 N. Y. 506, 509; Wild v. Paterson, 47 N. J. L. 406, 411, 1 Atl. 490; 2 Dill. Mun. Corp. sec. 976. In some of the foregoing cases it was held that the municipality was not liable for injuries sustained by the negligent running of the engines, or handling of the appliances in practice upon the streets. Whether the rule of exemption should be extended so far is not involved in the present case.

Taking notice of the public duties required to be performed by the firemen, it is clear that they had no authority whatever to invite persons into the building. The act of the plaintiff’s father inviting the plaintiff, if he so in fact did, to enter the second story of the house in order to see a passing procession, was entirely outside of his duty and beyond his powers; and the District of Columbia cannot be held liable for the injuries which she received, whether the firemen were negligent in failing to protect the openings in the floor, or not. Smith v. Rochester, supra; 2 Dill. Mun. Corp. secs. 968, 970, 976. Going further, and assuming as a fact, what might be inferred from the broad allegation of the declaration, namely, that the District commissioners may have authorized and permitted the general public to enter the building for the purpose of looking at processions from its second-story windows, we think that the same rule applies. The powers of the commissioners are defined and limited. They cannot erect buildings for public amusement without the authority of Congress; much less can they convert into places of public amusement buildings authorized by Congress solely for governmental purposes. Had they expressly invited the public, on the occasion in question, to enter the fire-engine house and watch the procession from its windows, they would have acted beyond their powers; and the District of Columbia would be under no greater liability for their acts than for those of the firemen.

A writ of error to the Supreme Court of the United States was applied for by the appellant on March 19, 1907, and allowed the same day.

Our conclusion is that, considering the case upon either the statement of counsel or the allegations of the declaration, or upon both taken together, the court did not err in directing the jury to return a verdict for the defendant. The judgment will therefore be affirmed, with costs. It is so ordered. Affirmed.