Boorse v. Springfrield Township

103 A.2d 708, 377 Pa. 109, 1954 Pa. LEXIS 498

• Court: Supreme Court of Pennsylvania
• Decided: March 22, 1954
• Docket: Appeal, 156
• Status: Published

Opinions

Opinion by

Mb. Chief Justice Hob ace Stern,

Plaintiff’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 the 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) :

. . nor is it conceivable how any blame can be fastened upon a municipal corporation, because its officer, who is appointed or elected for the purpose of causing to be observed and carried into effect the ordinances duly passed by the corporation for its police, either mistakenly or wilfully, under colour of his office, commits a trespass; for in such case, it cannot be said, that the officer acts under any authority given to him, either directly or indirectly by the corporation ; but must be regarded as having done the trespass of Ms own will, and he alone must be looked to for compensation, by the party injured.”

In Elliott v. The City of Philadelphia, 75 Pa. 347, which also happened to involve the seizure of a horse by the police, the same principle of immunity of the municipality was applied. There a carriage was being driven on a street of the city faster than was permitted by an ordinance; a policeman took the driver and the horse into custody and then negligently allowed the carriage to be broken and the horse to escape, run away and be killed. Citing the Fox case as authority, the court sustained a demurrer to the plaintiff’s declaration and gave judgment for the defendant.

Since these early cases there has followed a veritable multitude of others which, under varying facts, sustained the same doctrine.¹ As stated in Hartness v. Allegheny County, 349 Pa. 248, 249, 250, 37 A. 2d 18, 19, “It [the law] distinguishes between the acts of municipalities done in their proprietary or business capacity and those which they perform as functions of government delegated by the State. As to the former the doctrine of respondeat superior applies; as to the latter, it does not.” Of course, police officers perform essentially a governmental function. It is true that municipalities are not clothed with immunity in certain cases, such as those involving highway construction, the building of public works, or the maintenance of a nuisance; these are well established exceptions to the rule and as such are explained in Scibilia v. Philadelphia, 279 Pa. 549, 555, 556, 124 A. 273, 275, 276.

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 ;² if, on the other hand, they were engaged in the exercise of the police power of the municipalities in removing a traffic hazard or obstruction on the highway, in that event also the townships would not be liable for their acts. Therefore, in either view of the situation, plaintiff’s case cannot succeed.

The decision in Radobersky v. Imperial Volunteer Fire Department, 368 Pa. 235, 81 A. 2d 865, upon Avhich plaintiff principally relies, has no bearing upon the situation here involved. There plaintiff’s automobile was struck at an intersection by a truck of the defendant fire company, the operator of the truck having negligently caused the collision by traveling at an undue speed and through a red light. Defendant claimed that it was immune from liability for the accident on the ground that it was both a charity and an agency performing a governmental function. The court held, however, that such immunity did not attend it because it was returning at the time from participation in a firemen’s parade. Obviously, the employes of the defendant while it was engaged in parading were neither performing, nor purporting to perform, any governmental function or any duty connected with the service of the fire department and therefore the ordinary rule of liability of an employer for the negligent act of an employe was properly applied.

Judgment affirmed.

1 For example: Knight v. City of Philadelphia, 15 W.N.C. 301; Kies v. City of Erie, 135 Pa. 114, 19 A. 942; Betham v. Philadelphia, 196 Pa. 302, 312, 46 A. 448, 451; Scibilia v. Philadelphia, 279 Pa. 549, 124 A. 273; Steele v. McKeesport, 298 Pa. 116, 148 A. 53; Devers v. Scranton City, 308 Pa. 13, 161 A. 540; Hartness v. Allegheny County, 349 Pa. 248, 37 A. 2d 18; Kunz v. Titusville, 373 Pa. 528, 97 A. 2d 42; Cousins v. County of Butler, 73 Pa. Superior Ct. 86; Kosoelek v. Lucas, 157 Pa. Superior Ct. 548, 43 A. 2d 550. Por the general application of the doctrine by practically all other jurisdictions see 38 Am. Jur. 317, §620 and, more particularly in regard to wrongful acts of municipal employes in connection with tlie impounding or destruction of animals, 2 Am. Jur. 803, §152.

2 It seems that the point where the horse was trapped was on 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.