Appeals, Nos. 48 and 49, Jan. T., 1953, from judgments of Court of Common Pleas of Lehigh County, Jan. T., 1949, No. 129, in case of Samuel F. Hill, Sr., in his own right and Samuel F. Hill, Jr., a minor, by his father and natural guardian, Samuel F. Hill, Sr. v. The Housing Authority of City of Allentown. Judgments affirmed.
Linn H. Schantz, for appellant, submitted a brief.
Henry L. Snyder, with him Snyder, Wert & Wilcox, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
Of the many questions originally involved in this litigation defendant on the present appeal has eliminated all but one, namely: Was the maintenance of a refuse dump by the Housing Authority of the City of Allentown the exercise of a governmental function so as to render the Authority immune from liability for negligence?
The Authority constructed and operated a housing unit known as Hannover Acres, and on premises owned by it immediately adjacent thereto it maintained a dump for the deposit of the ashes and rubbish of its tenants. The dump was quite large, constituting part of an abandoned quarry pit. It was not adequately enclosed by a fence or barrier. The rubbish deposited there consisted of paper, cartons, boxes, tin cans, bottles, glass, furniture, ashes, pieces of iron, newspapers, mattresses, sofas, bicycles, tires, broken wheels and toys; some of it was inflammable and occasionally fires raged on the dump. The children of the tenants were accustomed to play on and around it. One afternoon the minor plaintiff, then 7 years of age, was searching there for junk; his clothing caught on fire and he sustained severe burns about his body which resulted in serious permanent injury. In the present suit brought by his father against the Authority on his behalf, and
in his own right, the court, sitting without a jury, found a verdict in favor of the father in the sum of $18,000 and as guardian of his minor son in the sum of $30,000. From the judgments entered on those findings defendant appeals, but, as above stated, it argues as the sole question involved whether it is subject to liability for negligence in view of the nature of the function which it performs as a public agency.
It is undoubtedly true as stated by Mr. Justice LINN in Honaman v. Philadelphia, 322 Pa. 535, 537, 185 A. 750, 751, that the distinctions in the law determining tort liability of municipal corporations arising out of the exercise, on the one hand, of so-called governmental functions, and, on the other, of corporate or proprietary functions, have long been in a state of confusion and uncertainty. Indeed the decisions on this subject have been more or less arbitrary, and not wholly consistent with one another, perhaps because they have been based primarily on practical considerations of public policy rather than on any principles of logic. What at least is firmly established is, that, in the case of acts of municipalities performed as functions of government delegated by the State to its agencies as public instrumentalities, there is immunity from such liability, whereas in the case of acts of municipalities performed in their proprietary or business capacity the doctrine of respondeat superior applies and liability exists. The real difficulty, however, arises in determining whether, in any given case, the activity in question is governmental or proprietary in its nature.
The Housing Authorities Law of May 28, 1937, P.L. 955, created Authorities for the proclaimed purpose of providing safe and sanitary dwelling accommodations for persons of low incomes. The powers granted to them are enumerated at great length in ...