Wakefield v. Newport

60 N.H. 374

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1880
• Status: Published

Opinion

Smith, J.

The plaintiff does not seek to recover for injuries sustained^while travelling from a defective highway. It is not alleged that the flag-staff was the property of the town, or that it was the duty of the town to remove it. No action can be main- " tained against a town for the negligence of its officers or servants ! in the performance of an act which a corporation of such a char-; acter is without authority to undertake. Eastman v. Meredith, 36 N. H. 284; Edgerly v. Concord, 59 N. H. 78, 341.

The plaintiff does not contend, in argument, that the town ordered or authorized the removal of the flag-staff. And the selectmen, by assuming the duty of removing it, did not make their act the act of the town, or make the town responsible for their negligence. It is evident that the allegation that the removal was the act oí the town cannot be proved, and that the plaintiff cannot recover. The I relation of master and servant, or principal and agent, does not! ■exist, and the maxim respondeat superior does not apply.

Case discharged,.

Bingham, J., did not sit: the others concurred.