Boyd v. Insurance Patrol of Philadelphia

Mr. Justice Clark delivered the opinion of the court The Insurance Patrol of the city of Philadelphia is a company incorporated by special Act of the legislature of this state: P. L., 1871, page 59; the object of the corporation, as declared in its charter, is “to protect and save life and prop erty, in or contiguous to burning buildings, and to remove and take charge of such property, or any part thereof, when nec essary. On 3d May, 1883, a fire occurred in the roof of the store of Coon Brother & Co., No. 29 South Front street, in the city of Philadelphia. In order to protect the property therein from injury by water, tarpaulins were spread by the patrol upon the upper floor of the building. On 6th May, following, Andrew C. Koockogey and James A. Hutchinson, two of the employés of the patrol, came to remove the tarpaulins, which had remained there from the time of the fire. They backed a wagon to the curb to receive them ; Koockogey stood upon the sidewalk, whilst Hutchinson pitched the tarpaulins from the window to the pavement below. One of the bundles, in its [277] descent, struck Mr. Charles A. Boyd, who was at the timo passing on the sidewalk, injured his spine, and from the effects of the injury he,in a few days died. It is alleged that the employés of the Insurance Patrol were negligent in the discharge of their duty; that through their negligence, Mr. Boyd lost his life, and this suit is brought by his widow and child, not only against the employés of the Insurance Patrol, but against the Patrol itself, to recover the damages which they have sustained, in the death of a husband and father. At the close of the plaintiffs’ case, the Court entered a non-suit as to Koockogey, and also as to the Insurance Patrol, and the jury returned a verdict in 125,000 against Hutchinson alone. The errors assigned are to the refusal of the Court to take off the nonsuit, as to each of the two defendants named. The Court was right, we think, in refusing the motion as to Koockogey. He and Hutchinson, it is true, came together to remove the tarpaulins from the fourth story of the store, and it was doubtless the duty of each, in so doing, to exercise due diligence and care for the safety of those passing, but unless their negligence was joint or concurrent, each was liable for his own negligence only. Koockogey was the driver; he stood at the horses’ head, during the entire transaction, and although they may have together determined to throw the bundles out of the window upon the pavement, lie had no reason to suppose that Hutchinson would recklessly throw the bundles upon the heads of the passers by. There is no evidence that Koockogey was stationed below to give notice, or that they divided the dangers between them. The case is in this respect, similar to McCullough v. Shoneman, 14 W. N. C., 397, and is governed by it. It is contended, in the first place, that the Insurance Patrol is a corporation, created, not for profit or private emolument, but for the exercise of a certain public function delegated to it by the state ; and in the second place that it is at all events, a public charitable corporation, having no fund appropriated for payment of injuries resulting from negligence of its employés, and that, for both or either of these reasons upon the grounds of public policy the Patrol is exempt from the rule of respondeat superior. It has been repeatedly decided, that, as a general rule, a municipality, in the performance of certain public functions, delegated to it by the sovereignty of the state, is an agent of the government, and is not liable for the malfeasance or negligence of its officers or employés. The officers of the municipality have been held to be quasi civil officers of the government, although appointed by the corporation; they are themselves [278] personally liable for their malfeasance or nonfeasance in office, but for neither is the corporation responsible. The corporation appoints them to office, but does not in that act sanction their official delinquencies, or render itself liable for their official misconduct: Prother v. City of Lexington, 18 B. Munroe, 559. In order to charge a municipal corporation for negligence in the performance of a public work, the law must have imposed a duty on it, so as to make that neglect culpable : Elliott v. Philadelphia, 25 P. F. S., 847. Thus, the municipality is charged with the grading and repair of the highways, and the negligence of the officers of the municipality, in this respect, may be visited upon the municipality itself; but unless a duty has been thus imposed, the corporation can not be held. Therefore in Alcorn v. Phila., 8 Wright, 348, it was held, that the city was not responsible for the negligence of a district surveyor, in locating the line of certain lots, by reason of which, a lot holder was compelled to rebuild his house; in Elliott v. Philadelphia, 25 P. F. S., 347, that the city was not responsible for the negligence of the police; and in Knight v. Phila., 15 W. N. C., 307, that the city was not liable for injuries caused by the negligent driving of a fire engine, by an employé of the fire department. The same doctrine is declared in the courts of other states: Hafford v. New Bedford, 16 Gray, 297 ; Fisher v. City of Boston, 104 Mass., 87; Jewett v. New Haven, 38 Conn., 373; City of Chicago v. Turner, 80 Ill., 419; Howard v. City of San Francisco, 51 Cal., 52, &c. It is true also, as a general rule, that a public officer is not liable for the negligence 'of his official subordinates, unless he commanded the negligent act to be done : Schoyer v. Lynch, 8 Watts, 453 ; the rule is founded in considerations of public policy (Sawyer v. Corse, 17 Grat., 230) has been long recognized, and is one of general application. “The distinction generally turns upon the question whether the persons employed are his servants, employed voluntarily or privately, paid by him and responsible to him, or whether they are his official subordinates, nominated perhaps by him, but officers of the government; in other words, whether the situation of the inferior is that of a public officer or a private servant.” In the former case the official superior is not liable for the inferior’s acts, in the latter he is: American Lead. Cases, 641. A subordinate officer, when he is an independent officer, must stand or fall by himself; and to him, unless otherwise provided by statute, the maxim respondeat superior does not apply: Wh. Neg., 289. The same rule, it is argued, must be extended to the case of persons acting in the capacity of public agents, engaged in [279] the service of the public, and acting solely for the public benefit, though not strictly filling the character of officers or agents of the government; and also to public charitable institutions having no fund appropriated to the payment of such damages. The following cases, with others, are relied upon as supporting this view of the law: Russell v. Men of Devon, 2 T. R., 672-3; Feoffees of Heriot Hospital v. Ross, 12 Cl. & Fin., 506; Riddle v. Proprietors, &c., 7 Mass., 187; McDonald v. General Hospital, 120 Mass., 432. To what extent this rule of exemption may be applied has not been definitely decided in this state ; indeed, the precise question has not been considered in any of the cases to which our attention has been called, and there is an apparent conflict in the cases in England, and between the Courts of the several states. Upon this assumption as to the law, however, it is contended that the Insurance Patrol, whether regarded as a public agent auxiliary to the city of Philadelphia, or to the government, or as a public charitable Institution, is not liable for the malfeasance or negligence of its employes. But the Fire Insurance Patrol is of course neither a municipal corporation nor a public officer, nor can we say with certainty, from the charter alone, that it is a public agent, auxiliary to the city government of Philadelphia, or to its fire department, or that it is even a public charitable institution. It will be observed that there is no proof whatever as to whether or not the Insurance Patrol has any working capital; whether any, and if any what,incomes or sources of revenue it may have, as means of conducting its business, or as to the manner in which its business is or has been conducted, whether as a general or public charity or otherwise; the only evidence on the subject is the charter, under which it is authorized to act. There is, it is true, no provision in the charter for capital stock, for dividends of profits, or for rates of charge. On the other hand the charter contains no express provision that the corporation, is to be conducted wholly in the public interest or as a public charity, it is not stated that it will be supported by voluntary contribution, or by appropriation, for the state or the city, or that its services will be gratuitously rendered. In a trading corporation the amount of the capital stock and the number of shares are sometimes fixed by the charter, with special reference to the purposes of the grant; and a sound policy to prevent monopolies, and to coniine the action of companies in proper bounds would suggest this should always be done. But when the capital is not restricted, and tbe number of shares is not defined in the charter, these matters will depend upon the subsequent agreement of the corpora280 tors, who may in their “rules, regulations and by-laws for the well ordering of the business and affairs of the corporation,” determine not only the amount necessary to conduct the business, and adjust the number and value of the shares, as they may deem best for their own convenience and interests, but also the rates of charge and the method of dividing the profits. The operation of a society for the protection of life and property at fires might perhaps be regarded as exercising a public function. Such a society would certainly be the proper object of a gift for charitable uses. For as this Court said in Price v. Maxwell, 4 Casey, 35, adopting the language of the late Horace Binney, whatever is given for the love of God, or for the love of your neighbor, in the catholic and universal sense —given from these motives and to these ends — free from the stain or taint of every consideration that is personal, private or selfish, is a gift for charitable uses, according to that religion from which the law of charitable uses has been derived. But that which is the purpose of a public charity may be the distinctive purpose of a trading corporation, out of which it is proposed to realize profits; it is not the object alone of a corporation which makes it charitable within the meaning of the law, it is the mode in which that object is sought to be attained, as well as the purpose for which it is pursued. A private corporation, exercising a public function, or engaged in charitable work for private gain, can certainly in no sense be characterized either as a public agent or as a public charitable institution. On the other hand a voluntary association of individuals, who have contributed funds for a purely public purpose will be regarded as a charity: Thomas v. Ellmaker, 1 Parsons, 98. Thus in Humane Fire Co.’s Appeal, 7 Norris, 389, the object of the corporation was the protection of property from fire, but the fact was assumed, and the case considered upon the ground,that the company was in fact not a trading corporation designed to make money for its shareholders, but a charity incorporated as a public benefaction ; it was therefore held that the assets were held in trust for the public, and were not distributable among the members at dissolution. So in Bethlehem Bor. v. Perseverance Fire Co., 31 P. F. S., 445, the charter declared the object of the corporation to be “the protection of the property of our fellow-citizens from fire,” but the proof exhibited the fact that the corporation was conducted as a 'charity, that its property had been acquired by voluntary subscription, by public entertainments, &c., and it was held that the organization was not for the private gain of its members, and the property in aid of the object was for charitable uses. [281] The general rule undoubtedly is that a master is liable for the negligence of his servant, within the scope of his employment; if the Fire Insurance Patrol is to be exempt from the operation of this general rule of the law, it must exhibit and establish the ground of its exemption. The charter alone is, in our opinion, inadequate for the purpose. If it were shown that, although the charter is silent on the subject, the corporation was in fact conducted as a public charity, that its services were gratuitously rendered to the public for the public good, then the question which has been so ably discussed in this case, would be raised for our consideration. If it bo true that the Insurance Patrol has been invested with a public function, which it exercises for the public good as a public agent, and not for private gain, or if it has been conducted as a public charitable institution, the facts should appear in the proofs; and in order that this, if it be so, may be shown, and the question suggested may come properly before us for adjudication, the Judgment is reversed and a procedendo awarded.