Hawks v. Inhabitants of Charlemont

107 Mass. 414

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1871
• Status: Published

Opinion

Chapmah, C. J.

It appears that in consequence of an unprecedented freshet extraordinary measures were necessary in the town of Charlemont, to repair the roads and bridges; that a town meeting was thereupon held, and it was voted that the selectmen be the agents of the town to repair the highways and bridges at the present time, and that they be empowered to appoint such agents “ to rebuild certain bridges as they think best.” The selectmen employed agents and servants to repair the abutments and piers of a bridge, and took stone from the bank of the river near the bridge and upon the plaintiff’s land for this purpose. Materials were taken in like manner from other persons who claimed damages therefor, and the selectmen have paid them and th3 town has sanctioned the payment. At a subsequent town meeting, the plaintiff claimed damages for this injury, and no objection was made to the claim except-the amount. But it is denied that the plaintiff can maintain this action.

It is manifest that the acts of the selectmen were tortious; and if they were done by authority of the town an action of tort will lie against the town. When officers of a town, acting as its agents, do a tortious act with an honest view to obtain for the public some lawful benefit or advantage, reason and justice require that the town in its corporate capacity should he liable to make good the damage sustained by an individual in consequence of the acts thus done. The contrary doctrine would be injurious to the person damaged and to the agents employed by the town. It would also be injurious to the town, by paralyzing the energies of such agents or officers, as they would be likely to refuse to act when prompt action is important. Thayer v. Boston, 19 Pick. 511, 516. Anthony v. Adams, 1 Met. 284, 287. Lawrence v. Fairhaven, 5 Gray, 110.

The extent of the liability of a master for the wrongful acts of his servant is stated in Hwe v. Newmarch, 12 Allen, 49. If the act is done without the authority, and not for the purpose of executing the orders or doing the work of his master, the latter is not liable; but if done in the execution of the authority given by the master, and for the purpose of performing what he has directed, he is responsible, whether the wrong be occasioned by negligence or by a wanton and reckless purpose to accomplish his business in an unlawful manner.

By Gen. Sts., c. 44, § 1, the town was obliged to keep its highways and bridges in repair. By § 11, it might authorize its surveyors or any other person to enter into contracts for making or repairing its highways. By § 14, if it neglected this duty, the selectmen might authorize surveyors of highways to enter into contracts for making the repairs. Other sections subject towns to penalties for suffering their ways to be out of repair, and to damages if travellers are injured by such defects.

These statutes made it for the defendants’ interest to repair the bridge in question, and authorized the town to pass the vote above mentioned making the selectmen its agents to do the work, and employ servants and agents under them. It was as the agents of the town, that the selectmen took the plaintiff’s property and did the injuries alleged; and by the authorities cited above, this action lies.

The plaintiff’s claim for damages is not, as the defendants contend, under Gen. Sts. c. 44, §§ 19, 20; for his demand does not arise out of any change in the grade of the road, but is for an illegal taking and injuring of bis property outside of the highway. Nor is it for entering upon, using or taking his land for the purpose of securing or protecting the way or bridge. But it is for taking and carrying away stone to be used in the repair of a pier or abutment, and for consequential damage. Therefore the statute cited above, and the St. of 1868, c. 264, do not apply to the ease, and an action at law is the appropriate remedy.

The case is unlike Barney v. Lowell, 98 Mass. 570, and the cases there cited, where the parties were not acting as agents of the town.

Case to stand for trial. •