City of Cambridge v. Hanscom

Hammond, J. The judgments against the city of Cambridge established its liability, and there rested upon it the duty of paying them. If it had paid them, then, upon the agreed facts, it would have had a right to recover either against the metropolitan water board representing the Commonwealth, or against the defendants. If it had proceeded against the defendants and [56] had recovered from' them, that would end the matter because the latter had no right of indemnity against any one. If it had proceeded against the water board representing the Commonwealth, then the latter upon paying would have had an action of indemnity against; ,the defendants, because as between the defendants and the board the former were ultimately liable ; and under the well established principles of subrogation the Commonwealth would have been subrogated to the rights of the city against the defendants. Hart v. Western Railroad, 13 Met. 99. Wall v. Mason, 102 Mass. 313, 316. It is urged, however, by the defendants, that the city met with no loss because the judgments were paid, not by it but by the Commonwealth. But this manner of payment can make no difference. To hold that the rights of the Commonwealth were unfavorably affected by its payment of the judgments instead of waiting for the city to pay and then paying the city, is to lose sight of the substance of the transaction. The city of Cambridge was under the weight of the liability established by the judgments, and was called upon to discharge them. It was the duty of the Commonwealth to relieve the city from that load. The money was paid by it, not in the discharge of ai'ny duty due from it to the judgment creditors, but in the discharge of its duty to indemnify and protect the city, and the simple fact that the payment was made directly to the judgment creditors cannot make the transaction any the less one of indemnity. So far, therefore, as respects the amount of the judgments, the Commonwealth is subrogated to the right of the plaintiff against the defendants. But as to the counsel fee of $1,000 paid by the Commonwealth to Mr. Pevey, the-case is different. It is plain upon the agreed facts that the Commonwealth assumed the defence of the cases and hired Mr. Pevey as its counsel, and that the above sum was paid to him as such and not as city solicitor of Cambridge. It is true that he was the general solicitor of Cambridge which paid him an annual salary, but he was not under the exclusive employ of the city. He had the right to engage in business outside of his work as city solicitor, and such always had been the custom of his predecessors. Under these circumstances he was employed by the Commonwealth. It is the same as though [57] some other person than he had been employed. The city of Cambridge never was under any obligation to him, or to anybody else, to pay this fee. This sum was not, nor was it ever intended to be, any part of the money to be paid by the city to him as city solicitor, and in paying it the Commonwealth discharged no obligation or liability of the city. If it be said that, in so far as Mr. Pevey acted as city solicitor in these cases, it may be assumed that a part of his official salary went to pay for these services, the answer is that this fee does not cover what he did as city solicitor, but what he did as counsel for the Commonwealth, under his employment as such. Since the city never paid this fee and never was under any obligation contingent or absolute to pay it, the doctrine of subrogation is not applicable, and the city cannot maintain an action to recover it for its own use or for that of any other party. “ There can be no subrogation unless there is something to be subrogated to.” Morton, J. in Skinner v. Tirrell, 159 Mass. 474. Judgment reversed and base remanded to Superior Court, with instructions to enter judgment only for the amounts paid on the judgments with interest.