279 Pa. 549 | Pa. | 1924
Opinion by
In compliance with the spirit of rule 56 of this court, counsel “substituted for the notes of testimony” an agreed statement of facts, which shows that, on May 4, 1921, plaintiff, Guiseppe Scibilia, while standing at the side of a street in Philadelphia, was injured by “an automobile truck, the property of the city,......loaded with ashes, and operated by one of the employees of the Bureau of Street Cleaning of the Department of Public Works,” the vehicle being engaged at the time in conveying the ashes from a “centralization plant” of the municipality to one of its dumps. Plaintiff alleged negligence on part of the driver of the truck, who, in reply, claimed that Scibilia’s injuries were due to his own carelessness ; but since the verdict was against defendant, its negligence and plaintiff’s lack of fault in that regard must be assumed on this appeal. Finally, the statement of agreed facts shows that “no evidence was produced by plaintiff that the bureau......entrusted with the cleaning of streets derived any income or revenue...... from the performance of this work.”
The trial court entered judgment on the verdict, defendant appealed and the Superior Court'gave judgment in its favor; the present appeal by plaintiff followed.
The facts before us present the question of the implied common-law liability of a municipality for the negligence of its servants. In seeking to determine the existence of this liability under any particular circumstance, we must consider the distinction between the governmental and the private acts of the corporation involved and decide as to the capacity it occupied at the time of the
In deciding that, at the time of the accident, the City of Philadelphia was performing a purely public function, to which the rule of respondeat superior did not apply, the court whose judgment is now under review correctly stated that the true test went to the nature of the duty the municipality was then engaged in carrying out, the controlling question being, Was it “corporate and managerial, or public and governmental”? and this without regard to whether the duty was “absolute,” “imperative,” or “ministerial,” as distinguished from “legislative,” “judicial,” or “discretionary,” which is a test sometimes applied.
The test last mentioned may or may not properly have been given controlling efficacy in the cases where liability was enforced on the ground that the act investigated occurred through the omission to perform, or in the improper or negligent performance of, an imperative duty, as distinguished from a discretionary power; but, be that as it may, it is not the correct standard
As to the line of decisions already mentioned, where recovery of damages was allowed for injuries growing out of the negligent construction or maintenance of highways, since in some of these cases the courts have said that the governmental agencies were liable, and the rule of respondeat superior applied, because such negligence represented a breach of an imperative duty expressly imposed by the State on the municipalities, we must also notice that in several of our opinions we have taken occasion to point out that the decisions, fixing municipalities with responsibility for damages in this particular kind of case, are in a class by themselves, depending more on long established precedent than on fixed rules or pure logic: see Ford v. School District, 121 Pa. 543, 549; Briegel v. Phila., 135 Pa. 451, 458; Hubbard v. Crawford County, 221 Pa. 438, 439. As suggested by Judge Keller in Cousins v. Butler County, 73 Pa. Superior Ct.
Aside from the exceptional instances already noticed, where municipalities, though acting in a governmental capacity, have been held liable for the negligence of their employees, and those where recovery was allowed because the State, in placing on its governmental agencies the duty in question, indicated an intention that such agencies should be responsible for injuries growing out
The city, in the present instance, was engaged at the time of the accident in gratuitously rendering service of “a public character, for a high order of public benefit,” to which service, had it been undertaken by an independent association organized for public charity, the rule of respondeat superior would not have, applied, and this, because of the character of the work involved (Fire Ins. Patrol v. Boyd, 120 Pa. 624, 646-7); when performing gratuitously — in the sense that, for the work
The care of public health is undoubtedly a subject-matter of general concern, and how it shall be accomplished is a public question. When the legislature leaves its accomplishment to any degree in the hands of the several municipalities, they act as governmental agencies, and not as business corporations, in the performance of the power placed at their disposal or of the duty thus put on them, whichever it may be. That cleanliness makes for health must be accepted as a truism; and that the regular, systematic gathering by municipalities of refuse, including ashes, and the proper, orderly and efficient disposal thereof promotes cleanliness, is apparent. Such gathering and disposal of refuse is primarily a health measure, the duty to perform which might have been placed on the health department; the fact that it was put elsewhere makes it none the less a health measure, and, hence, a public or governmental function within the police power: Howard v. Phila., 250 Pa. 184, 188. Those engaged in taking care of the public health, albeit appointed by a municipality, are quasi civil officers of the government. The point under immediate discussion is covered by McQuillan, Municipal Corporations (Supplement), vol. 8, section 2625, p. 8229, thus: “The liability or nonliability of a municipality for its torts......depends upon the capacity in which the city was acting at the time......A,
The fact that in earlier times the duty of gathering and disposing of refuse was not assumed by, or put on, the public authorities, does not help one way or another in solving the question whether, to-day, the gratuitous performance of such a function by a great city represents the carrying out of a purely public obligation or of a private undertaking. Thus, the fighting of fires in large cities was not, until comparatively recent years, treated as a matter for direct governmental control, but its status as a public function is now well settled. While the police power of the State rests on established principles, the propriety of its application to particular circumstances, and whether, in any particular instance, the acts of a public agency may be held to fall within it, depend largely on the conditions existing at the time, and attempts at the statement of general rules to control or guide the judiciary in determining these questions have in the past proved rather futile, as may be seen by an examination of the authorities cited by counsel in the case before us. Here, however, we agree with the Superior Court that, when the city Charter Act of June 25, 1919, P. L. 581, by section 5 of article XX, empowered cities of the first class to clean the streets, including the
So far as shown by reported cases, the decisions of the United States Supreme Court, and of the courts of
The two Pennsylvania authorities which counsel for appellant cites as being, “on their facts, most analogous to the case at bar,” are Bodge v. Phila., 167 Pa. 492, and Fox v. Phila., 208 Pa. 127. Judgment was sustained in the first of these solely on the ground that the municipal bureau, whose employees caused the damage of which plaintiff complained, was, in its revenue producing capacity, similar to the purely business departments, of the city, and, therefore, the rule of liability for the acts of employees of business corporations, rather than of governmental agencies, applied. The questions discussed in the second case do not appear to have included the point as to whether, in conducting the building known as the City Hall, in Philadelphia, the municipality was performing a governmental function or carrying on a business undertaking; that it was doing the latter seems to have been assumed, probably on the ground that, since, in this structure, owned by the municipality, are housed not.only the local courts and the purely governmental departments of the city, but also the revenue producing and purely business departments of the latter, the structure should be considered as any other business or office building. Obviously, neither of these decisions governs here; though, as asserted by counsel for appellant, they
As to the cases from other jurisdictions called to our attention by appellant, Denver v. Maurer, 47 Colo. 209, 106 Pac. 875, was a suit by one who fell over a hose with which city employees were flushing a sewer; the ground of action was a failure to keep the street in a reasonably safe condition, and it was on this basis the court permitted a recovery. The case on which plaintiff chiefly relies is Missano v. New York City, 160 N. Y. 123, 54 N. E. 744, where recovery against the city was allowed; but a divided court, and a strong dissenting opinion, serve to weaken it materially as an authority. The Illinois District Appellate Division Case of Flannagan v. Bloomington, 156 Ill. App. 162, is, in essence, an instance of the use of real property by a municipality to the injury of like property of another, — a nuisance case. So far as the views followed by the courts of ultimate appeal in both Texas (Ostrom v. San Antonio, 94 Tex. 523, 62 S. W. 909) and Mississippi (City of Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329) are concerned, suffice it to say, we do not agree with them.
In conclusion, we are not impressed by appellant’s contention that, because the Act of 1919 authorizes the city to clean the streets by letting contracts for the work, this shows the legislature did not consider such service as purely governmental, inasmuch as functions of that character cannot be delegated. The answer to this is, that the letting of an independent contract to perform the physical work necessary to carry on a governmental function is not, technically, the delegation of the func
The assignments of error are overruled and the judgment of the Superior Court is affirmed.