Bates v. Worcester Protective Department

Knowlton, J. The defendant is a corporation organized under the St. of 1875, c. 234, for the discovery and prevention of fires, and the protection of property from damage by fire. This suit is brought to recover for the destruction by fire of the plaintiff’s stock of pianos and other goods in a music store, [134] which the defendant’s servants are alleged to have taken into their control and negligently to have suffered to be destroyed and negligently to have prevented the plaintiff from saving. We understand the last part of the instructions to the jury to be a modification of the first part, and to limit the liability of the defendant as it was broadly stated in the beginning. This limitation was in these words: “ It was incumbent upon the fire patrol at this fire, as at any fire, to act with an honest purpose, according to their best judgment. If they did that, the protective department is exonerated from all liability. The plaintiff, in order to recover, must satisfy- you by a fair preponderance of evidence that the patrolmen, in what they did or in what they omitted to do, acted wilfully, wantonly, and with a reckless disregard of the rights of the plaintiff in regard to his property, and but for that conduct the property could have been saved.” The question presented by the bill of exceptions is whether this corporation, after having assumed to interfere for the protection of property from damage at a fire, is liable for negligence in preventing the owner from saving his goods, or in failing to use reasonable care to protect them while keeping them in custody. That this is not a public charitable corporation, and that it is liable for the negligence of its servants, was settled in Newcomb v. Boston Protective Department, 151 Mass. 215. The statute incorporating this defendant is like that creating the Boston Protective Department. The only ground that we see on which it reasonably could be held that this defendant should be liable only for wilful, reckless, or wanton misconduct in cases where it actually interferes to control the management of the property exposed, and to prevent the removal of it by the owner, would be that the Legislature intended to give it a place of public authority, with power, as a tribunal acting through agents and servants, to determine finally the methods to be adopted for the protection of property, and then to use these methods to the exclusion of the owner, and to do all this without a hearing, and without responsibility for the consequences, so long as these servants and agents act in good faith in the honest exercise of their judgment, even though they may be negligent in forming or executing their plans. [135] In cases of exigency, and for the public welfare, we may assume the existence of a power in the Legislature, in the exercise of a. right founded on necessity, to authorize the destruction of property, even without compensation. In cases of overpowering necessity, as to prevent a great conflagration, it has often been said that private property may be destroyed by private persons without a liability in damages, and without statutory authority for such action. Assuming without deciding that this is the case, there is exemption from liability in these latter cases only when the facts, as afterwards determined by a competent tribunal, show an actual necessity for the destruction to prevent a great public calamity. Taylor v. Plymouth, 8 Met. 462. Miller v. Horton, 152 Mass. 540. Russell v. New York, 2 Denio, 461. Hale v. Lawrence, 1 Zabr. 714. Philadelphia v. Scott, 81 Penn. St. 80. Surocco v. Geary, 3 Cal. 69. Whether the destruction of property by public officers under the authority of a statute, as a means of preventing the spread of a fire, is merely a regulation of these rights created by necessity, which properly is referable to the police power, and which requires no provision for compensation, or whether it can be done only in the exercise of the right of eminent domain, and with a provision for compensation, is a question upon which authorities differ. See Pub. Sts. c. 35, §§ 3, 5. Miller v. Horton, 152 Mass. 540, and cases above cited. Cooley, Const. Lim. (5th ed.) 65, n. However that may be, recent legislation in this State and elsewhere has generally made provision for compensation whenever authority is given which, during a fire, may subject one’s property to sacrifice for the public good. If it were intended in this statute to subject the property of individuals to the control and management of the defendant corporation during a fire, with a risk of loss through the negligence of its servants or agents, we should expect a provision for compensation to persons who, through their negligence or their supposed regard for the interests of others, might suffer unnecessarily. As was pointed out in Newcomb v. Boston Protective Department, 151 Mass. 215, this corporation was not organized in the interest of the general public, but in the interest of insurers of property, and much more, therefore, should we expect a statutory provision for compensation in case of [136] unnecessary loss, if this corporation were given the control of property without liability for negligence. The absence of such a provision indicates that the Legislature intended to leave the defendant liable at common law to those who suffer in their property from its negligent manner of doing that which it undertakes to do. Another consideration looking in the same direction is the fact that the defendant is not given authority or power to control those engaged in extinguishing fires, for it is provided “ that nothing in this act shall be so construed as to lessen in any way the authority of the officers or members of the Worcester fire department, or to warrant or justify any interference with them in the performance of their duties.” St. 1875, c. 234, § 2. By § 9 of an ordinance of the city of Worcester relating to the fire department, the chief engineer is given sole command over other engineers and the officers and members of the fire department and all other persons who may be present at fires, and is required to “ direct all proper measures for the ex-tinguishment of fires, protection of property, preservation of order, and observance of the laws, ordinances, and regulations respecting fires.” The statute also provides that nothing in it shall “ in any way justify the owner of any building or personal property in the abandonment of his property.” Considering all the provisions of the act together, we are of opinion that the agents and servants of the defendant are not public officers who are given jurisdiction to manage and control the property of individuals at fires to their possible detriment, without liability for negligence. The question, what might constitute negligence in a case of this kind, is not raised by this bill of exceptions, and we do not decide it. The statute does not impose upon the defendant any primary duty to property owners to save their property from destruction or damage by fire or water. It gives power to the officers and employees to enter buildings “ to protect and save life and property therein, and to remove such property, or any part thereof, at or immediately after a fire,” but it leaves upon the owner the primary obligation to do what ought to be done for the preservation of it. Whether the power given by the statute in reference to property is paramount to that of the owner we need not now decide. We only decide that in doing [137] that which they undertake to do in the performancé of their duties under the statute, officers and agents of the defendant may subject the corporation to a liability for their negligence, even though they act honestly and in good faith. ¡Exceptions sustained.