Smith v. Inhabitants of Town of Exeter

88 A. 542, 110 Me. 553, 1913 Me. LEXIS 70

• Court: Supreme Judicial Court of Maine
• Decided: October 27, 1913
• Status: Published

Opinion

There are two counts in the plaintiff’s writ. The first -count is on an account annexed for services -of horses and men in breaking out a certain road in defendant town from- January 9, 1912, to February 29, 1912, amounting to $38.14. The second count is brought to- recover damages under the provisions -of Sec. 62, Ob. 23, Revised Statutes, which reads as follows:

“When any ways are blocked or encumbered with -snow, the road commissioner shall forthwith cause s-o much of it to- be removed or trodden down, as wil-1 render them passable. The town may direct the manner of doing it. In -case of sudden injury to ways- or bridges, he shall, without delay, cause them to be repaired. And all damage accruing to a -person in his business or property, through neglect of such road commissioner or the municipal officers- of such town, to so render passable ways that are blocked or encumbered with snow, within a reasonable time, may be recovered of such town by a special -action on the case.”

A verdict of $62 was returned for the plaintiff and the -case comes up -on defendants’ motion for a new -trial-.

Th-e plaintiff was clearly not entitled to- recover anything under the first count. The- services there sued f-o-r were admittedly rendered by the plaintiff without authority or direction of the town or of any person or official authorized to- bind the town therefor, and accordingly -it must be assumed that the jury were instructed that the town was not liable for those services. The verdict must therefore, 'be considered as rendered under the second count. Motion overruled.

P. A. Smith, for plaintiff. P. W. Holliday and D. I. Gould, for defendant.