Pease v. Parsons

Carroll, J. When this suit in equity was before us, Pease v. Parsons, 259 Mass. 86, the demurrer of the defendants was overruled. The plaintiff has amended her bill and the case was sent to a master. C. Lyman Parsons, hereafter called the defendant, conveyed to trustees a tract of land in Conway to be used as a public playground. A baseball field was laid out thereon, and the master found that the diamond as located in 1920 was so near the plaintiff’s land that a great many balls were driven onto her premises; that the defendant approved this location of the baseball field which was frequently used for baseball games by children and adults, although his approval of the location was before — 115 — he became trustee; that the defendant participated, after he became trustee, “ in a number of ball games played on the diamond, has umpired a few, and frequently has attended them as a spectator ”; that it was always apparent to him that the diamond was so located “ that it was reasonably to be anticipated that foul balls would be batted upon the plaintiff’s property in the ordinary course of the games, and was a necessary consequence of the layout of the diamond.” It was also found that the defendant saw balls batted onto the plaintiff’s land and witnessed damage done thereby to her property; that the plaintiff on several occasions complained to the defendant and has requested “ that the situation be remedied”; that the defendant at all times has permitted the use of the playground for ball games and has never taken any steps to stop them; that baseballs were driven against the plaintiff’s house and barn, damaging them, and quite frequently players would come upon her land to recover the balls batted into her garden; that the plaintiff has been subjected to inconvenience and annoyance and has been deprived of the unrestricted use of her yard and garden and the comfortable enjoyment of her home. It appeared that shortly before the suit was brought fences and wire barriers were erected. These have prevented many balls from going upon the plaintiff’s land but “ It seems doubtful ... if the trouble can be entirely remedied” if games are to be played on the diamond as at present located. The inference to be drawn from the findings is that the management and control of the ball field in its location where damage to the plaintiff’s land would follow from its use were in the hands of the defendant. After the death of Charles Parsons, one of the original trustees, the town of Conway, on February 7, 1921, took action purporting to elect the defendant as his successor. The vote of the town was in these words: “It was voted by the town that C. Lyman Parsons be a trustee of the public playgrounds.” It was not stated in the warrant for the meeting that this subject was to be acted on. — 116 — At the hearing before the master the defendant testified that he understood he was a trustee. The master found that he accepted the office and acted as if he were a trustee and “ assumed the duties and liabilities of the office, if as matter of law he could do so.” There was no appeal from the decree affirming the master’s report. A final decree was entered enjoining all the defendants from permitting baseball games to be played on the playground in such a place or manner “ that a ball will be likely to be batted or thrown on the adjoining premises of the plaintiff.” The decree also ordered the defendant C. Lyman Parsons to pay to the plaintiff the damages assessed. He appealed. A certain right of way was involved in the proceeding, but the decree is silent on this matter and no argument is made in reference to it. It is not argued that the part of the decree ordering Parsons, Affhauser and Patterson “ to take all reasonable means to prevent the playing of the game of baseball on such playground in such a place or in such a manner that a ball will be likely to be batted or thrown on said premises of the plaintiff ” is wrong. The defendant’s complaint is that the decree is incorrect in awarding damages against him and in restraining him from permitting ball games to be played on the location in question. Affhauser, Patterson and one Charles Parsons were the trustees named in the deed, dated June 1, 1916, in which the defendant was the grantor. The master found that when the deed was given all the trustees lived in Conway; that “ Since the day following the giving of the deed the trustees ” have never held a meeting or taken any official action regarding the diamond; that Affhauser moved from Conway ten years ago, and Patterson, since 1919, has ceased to live in Conway; that neither Affhauser nor Patterson had anything to do with laying out the present diamond, and it did not appear that either of them had seen a game played thereon or knew that damage was done or likely to be done to the plaintiff. The plaintiff contends that Affhauser and Patterson should be called upon — 117 — to respond in damages. No liability by these parties is shown, and as the plaintiff did not appeal from the decree this point is not open. The selection of “ a trustee of the public playgrounds ” was not referred to in the warrant for the town meeting. By G. L. c. 39, § 10, “No action shall be valid unless the subject matter thereof is contained in the warrant.” G. L. c. 45, § 14, provides that a town may acquire land and buildings by gift, purchase, eminent domain or may lease the same or may use land or buildings already owned by it for the purpose of a public playground, “ . . . the powers conferred by this section shall be exercised by the board of park commissioners, or by the school committee, or by a playground or recreation commission . . . elected by the voters of the town at a town meeting, or may be distributed between the board of park commissioners, the school committee and such playground or recreation commission, or any two of them, or they may be exercised by a committee made up from any one or more members of all or any one of said boards or commissions ... as the . . . town may decide. Any municipal officer or board authorized to exercise any of the powers conferred by this section may conduct its activities ... on private property, with the consent of the owners.” It does not appear that the town acted under this section of the statute. The land did not belong to the town; the title was originally in Affhauser, Patterson and Charles Parsons, trustees, “'their heirs, successors and assigns, in trust. ... To be forever kept open as a public play ground . . . under the control and management of the trustees for the time being. ... In case of a vacancy in said trustees, the same shall be filled at the next ensuing annual town meeting, by vote of the inhabitants of the town, legally qualified to vote in town affairs.” It does not appear that the town assumed the control or management of the playground. All that was done by the town was to pass the vote that the defendant “be a trustee of the public playgrounds.” It is not shown that any board authorized under the statute or any municipal officer with — 118 — authority' “to exercise any of the powers conferred by this section ” conducted activities on private property with the consent of the owner; and no board or officer designated in the statute was elected. It is our opinion, therefore, that the defendant was not an officer or agent of the town. He was acting in his capacity as a trustee of the land conveyed and was a trustee in fact. If the town had the right to elect him “ a trustee of the public playgrounds,” and we do not decide that it did, this, in all the circumstances, would not constitute him a public officer. But he understood he was a trustee, he acted as such, he assumed all the duties and liabilities of the office, as far as it was possible for him to do so. He participated in some of the games, and umpired some of them. He “ at all times has permitted the use of the playground for ball games, and has never interfered with them or taken any steps to prevent them.” Under the deed of trust the playground was “ under the control and management of the trustees.” As he was acting as trustee, controlling and managing the playground, participating in the games and permitting the wrongful use of the playground, he is liable for his own negligence. Pease v. Parsons, supra. Even if it be assumed that the deed of trust for a playground was a good public charitable trust, see Bartlett, petitioner, 163 Mass. 509, 514, this does not relieve the defendant of responsibility for his own personal misfeasance. It was held in Moynihan v. Todd, 188 Mass. 301, with a full citation of authorities, that a superintendent of streets was liable for his personal acts of misfeasance in the performance of a public work. In Barry v. Smith, 191 Mass. 78, it was said at page 89 that “ If the defendants [who were the board of health of Everett] were personally negligent in the maintenance of the hospital and in consequence of that negligence the hospital became a nuisance to the plaintiff’s adjoining houses and land, the defendants would seem to be liable within the rule of Moynihan v. Todd.” See Farrigan v. Pevear, 193 Mass. 147, 150, 151. This principle is applicable here. The defendant, act — 119 — ing as he did, was personally negligent in the management and control of the playground, and its maintenance, to such an extent that it became a nuisance to the plaintiff’s adjoining land, and for this personal misfeasance he was liable. The fact that the trust was a charitable one does not excuse him for his own personal misfeasance. There was no error in restraining the defendant from permitting ball games to be played in such place or manner as to cause damage to the plaintiff’s property. The defendant relies on Harrington v. Border City Manuf. Co. 240 Mass. 170. The case is to be distinguished. It could not have been inferred in that case that a person would be struck by a stray ball coming from the field. Here the defendant knew of the damage likely to occur and at times participated in the ball games. The decree was right in restraining the use of the ball field and in awarding damages. Decree affirmed with costs.