Stouffer v. Morrison

162 A.2d 378, 400 Pa. 497, 1960 Pa. LEXIS 370

• Court: Supreme Court of Pennsylvania
• Decided: June 30, 1960
• Docket: Appeal, 67
• Status: Published

Opinions

Opinion by

M[r. Justice Bok,

The plaintiff has sued three policemen and the Borough of Shippensburg, Cumberland County, for an alleged personal assault upon him by the officers. The borough filed preliminary objections in the nature of a demurrer, averring immunity from liability. The preliminary objection ivas sustained and the plaintiff has appealed.

In Boorse v. Springfield Township, 377 Pa. 109 (1954), 103 A. 2d 708, Mr. Chief Justice Stern said: “Plaintiff’s case cannot surmount the barrier 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.”

The court below, by President Judge Shughart, filed the following opinion, lacking only its introductory paragraph, and we approve:

“It is well settled in this Commonwealth that generally a municipality is not liable for a trespass committed by one of its policemen. In Boorse v. Springfield Twp., 377 Pa. 109, two police officers discovered a valuable racing mare with one leg wedged in a culvert at the edge of a public highway. Without notifying the owner or giving him a chance, to extricate the mare the officers destroyed the animal. In sustaining the preliminary objection of the township to the plaintiff’s complaint, Chief Justice Stern said at page 110:

“ ‘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 district. 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 his 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.’

“This same doctrine has been followed in a multitude of other cases, a list of which is set forth at page 111 of the opinion in the Boorse case, supra.

“Counsel for the plaintiff contends that the above rule is not applicable in the instant case because he alleges in his complaint that the borough was aware of the fact that these three police officers ‘at various times in the recent past . . . were guilty of similar unprovoked and unjustifiable assault and battery upon (other) persons . . .’ nonetheless did not dismiss the officers ‘but instead ratified and/or adopted the acts of such members of its police force.’

“We need not concern ourselves with a consideration of those cases where municipal corporations have been held liable in tort for the negligent acts of their servants committed in the course of proprietary functions of the municipality. The activity in which the officers here were engaged was clearly a governmental function.

“The basic principle underlying the rule of municipality immunity from liability for the tortious acts of its police officers is that such officers, performing in a governmental capacity, are not the agents or servants of the municipality but of the state itself.

“ ‘The theory is that the municipal corporation has a dual function, one exercised as a mere agent of the state in the process of government, the other private in its nature iñ that it is exercised for the particular benefit of the corporation and its inhabitants as distinguished from those things in which the whole state has an interest. If acting in its governmental capacity, the municipality is not liable in tort for either a nonfeasance or a misfeasance, because in so acting it is but the agent of the state and is so far a part of the state that it partakes of the sovereignty of the state in respect to immunity from suit. Concisely stated: The state is sovereign, the sovereign cannot be sued without its consent, the municipality is a mere agent of the state; q.e.d., the municipality cannot be sued unless the state shows its consent by legislation. . . . Another complication lies in the fact that the municipality being a legal entity can act only through its servants. In any case, then, in order for such corporation to be liable, the familiar doctrine of respondeat superior must be applied. But, say the cases, if the municipality is in the exercise of its public function the real superior is the state and not the municipality, and, for the reasons stated, there is no liability.' 120 A.L.R., 1376. This theory has been enunciated in numerous cases: Doty v. Village of Port Jervis, 52 N. Y. Supp. 57, 58; Buttrick v. City of Lowell, 1 Allen, 172; see annotation in 12 L. R. A. 537.

“It is plain that under the above theory the borough would not be liable because the officers are not the servants of the borough as alleged. The relationship necessary to make ratification operative is absent. Accordingly, it has been held that there could be no ratification of illegal acts of officers, such as to make the municipality liable. Calwell v. City of Boone, 2 N. W. (Iowa) 614; Peters v. City of Lindsborg, 20 Pac. (Kans.) 490.

“No cases in this Commonwealth have been cited and our own research has revealed none, but cases in other jurisdictions have consistently held that the municipality is not liable for the wilful violence or careless conduct of a public officer even where the violent temper or careless habits of the officer were or should have been known when he was appointed. 19 R. C. L. page 1108, Munic. Corp., Section 390.

“In Craig v. City of Charleston, 54 N.E. 184 (Ill.), the City was held not liable for an assault by a police officer even though it was alleged that the mayor who appointed him ‘knew, or should have known, of his dangerous and vicious character/ In McIlhenney v. City of Wilmington, 37 S.E. (N. Car.) 187, it was alleged that the assaulting policeman was frequently reprimanded by the mayor for his carelessness and incompetence, that the mayor and other city officials were frequently notified of his incompetency and that those who appointed him to the force were acquainted with his character. Nevertheless, a demurrer to the complaint, by the municipality, was sustained. The court said, at page 188: ‘Police officers can in no sense be regarded as agents or servants of the city. Their duties are of a public nature, and their appointment is devolved on cities and towns by the legislature as a convenient mode of exercising the functions of government; but this does not render the city liable for their unlawful or negligent acts.’ Other cases in which the municipality was held not liable even though there was an allegation that the municipality knew or should have known of the incompetency of the officer are: Rusher v. City of Dallas, 18 S.W. (Texas) 333; Doty v. Village of Port Jervis, 52 N. Y. Supp. 57; Lamont v. City of Waterville, 57 L. R. A. (N.S.) 1915 E., page 460 (Minn.) ; Wommack v. Lesh et al., 305 Pac. 2d (Kan.) 854 (1957).

“The allegation in the instant case upon which the plaintiff relies to enforce liability against the borough is that the borough was aware of alleged misconduct of the officers on prior occasions and impliedly ratified this misconduct by failing to dismiss the officers. The allegations in the present complaint, in substance, are the same as those in the cases cited above. We feel that the instant case is controlled by these decisions and the demurrer of the municipality must be sustained.”

The judgment is affirmed.