Appeal, No. 156, Jan. T., 1953, from judgment of Court of Common Pleas of Montgomery County, Feb. T., 1952, No. 280, in case of Herbert C. Boorse v. Springfield Township and Upper Dublin Township, Montgomery County. Judgment affirmed.
Thomas Z. Minehart, with him Alexander Knight and Samuel Polsky, for appellant.
John E. Landis, with him David E. Groshens and Elmer L. Menges, for appellees.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
Plaintiff's case cannot surmount the barrier of the rule establishing the immunity of municipalities from liability for torts committed by their employes in the course of performance of a governmental function unless a right of recovery is expressly granted by statute.
Shortly after midnight a valuable racing mare was discovered in a helpless condition with one leg wedged in a culvert draining into a gutter at the edge of a public highway in Montgomery County. Whether it was partly on the shoulder of the highway or entirely on private property does not appear. Two police officers, one employed by Springfield Township and the other by Upper Dublin Township, both of which townships border on this highway, arrived on the scene and shot and killed the mare. Plaintiff, the owner of the mare, brought action against the townships to recover the value of the animal. In his complaint he alleged that the officers knew that the mare was his property but they did not notify him or give him any opportunity to extricate the animal, nor did they make any effort to determine whether the condition of the mare made it necessary to destroy her.
Both townships filed preliminary objections to the complaint, one of which set up the doctrine of non-liability of the townships for the act of the policemen. The court sustained this objection and plaintiff appeals.
More than a century ago it was held in Fox v. The Northern Liberties, 3 W. & S. 103, that the defendant in that case, an incorporated district, was not liable for a trespass committed by its Superintendent of Police, who was alleged to have illegally seized a horse under a false pretense that its owner was violating the ordinance of the district. The court said (p. 106):
"... nor is it conceivable how any blame can be fastened upon a municipal corporation, because its officer, who is appointed or elected for the purpose of causing to be observed and carried into effect the ordinances duly passed by the corporation for its police, either mistakenly or wilfully, under color of his office, commits a trespass; for in such case, it cannot be said, that the officer acts under any authority given to him, either directly or indirectly by the corporation; but must be regarded as having done the trespass of his own will, and he alone must be looked to for compensation, by the party injured."
In Elliott v. The City of Philadelphia, 75 Pa. 347, which also happened to involve the seizure of a horse by the police, the same principle of immunity of the municipality was applied. There a carriage was being driven on a street of the city faster than was permitted by an ordinance; a policeman took the driver and the horse into custody and then negligently allowed the carriage to be broken and the horse to escape, run away and be killed. Citing the Fox case as authority, the court sustained a demurrer to the plaintiff's declaration and gave judgment for the defendant.
Since these early cases there has followed a veritable multitude of others which, under varying facts, sustained the same doctrine.*fn1 As stated in Hartness
situation here involved. The plaintiff's automobile was struck at an intersection by a truck of the defendant fire company, the operator of the truck having negligently caused the collision by traveling at an undue speed and through a red light. Defendant claimed that it was immune from liability for the accident on the ground that it was both a charity and an agency performing a governmental function. The court held, however, that such immunity did not attend it because it was returning at the time from participation in a firemen's parade. Obviously, the employes of the defendant while it was engaged in parading were neither performing, nor purporting to perform, any governmental function or any duty connected with the service of the fire department and therefore the ordinary rule of liability of an employer for the negligent act of an employe was properly applied.
ING OPINION BY MR. JUSTICE MUSMANNO
In the darkness of early morning on October 3, 1953, a valuable thoroughbred racing horse named "All's Over," strayed from an enclosure on the land of its proprietor, and, doubtlessly excited over an unexpected freedom, headed for distant highways. At a point close to the boundary line between Springfield Township and Upper Dublin Township, "All's Over" unwaringly entered into a culvert and there became wedged at a spot about 200 yards south of Dresherton Road. Shortly after this involuntary halting of movement, two policemen arrived -- one from Springfield Township and the other from Upper Dublin. Without making any effort to dislodge the imprisoned but uninjured animal, and without seeking counsel of its well-known
owner, the two policemen fired ten revolver shots into the horse.
For "All's Over," it was now indeed all over.
After their brave deed had been accomplished, the police officers notified the owner, Herbert C. Boorse, who made arrangements to have the horse transported to the University of Pennsylvania Veterinary Hospital where an autopsy was performed. With an unintentional caprice that only added to the tragedy of the occurrence, the examining doctor reported that there was absolutely nothing wrong with the horse except ten bullet holes in its head.
Boorse brought an action of trespass against Springfield and Upper Dublin Townships, asking for $25,000 damages for the loss of his private property. The defendants filed preliminary objections on the ground that townships, being governmental subdivisions, were immune from tort actions for the acts of their policemen. The lower court sustained the objections and entered judgment for the defendants. The plaintiff appealed to this Court which has affirmed the action of the lower court.
A citizen of the United States has been deprived of a valued possession worth $25,000 under circumstances of undoubted wanton negligence, and yet he may not even be heard in Court. The first principle a student encounters as he prepares to fit himself for the practise of the law is that there is no right without a remedy, or, stated in another manner, there is no wrong that may not be corrected in law. But this case presents a wrong which no one can deny, and yet the plaintiff pleads in vain for a hearing.
The defendant municipality Springfield Township resists liability on the ground that it is not responsible for any act of "misfeasance or non-feasance" of its policemen. The Complaint, however, describes an act
of malfeasance, specifically charging the two policemen with conduct which was "both wilful and wanton," exhibiting a "reckless disregard of the property rights of the plaintiff."
In the year 1876, the mayor of Philadelphia was sued for ordering the destruction of property which the mayor claimed was a nuisance and a fire hazard. The jury returned a verdict for the defendant, and the property-owner appealed. Although this Court affirmed the verdict, it specifically declared, through Chief Justice SHARSWOOD, "that the case was properly submitted to the determination of the jury." (Fields v. Stokley, 99 Pa. 306) It could well be that even in this case the jury would return a verdict for the defendants, but the plaintiff has the right to have a jury pass upon the issue he presents. In justifying the action of the Philadelphia mayor, Chief Justice SHARSWOOD said: "It is stated as a fact in the special plea, and of course a fact admitted by the agreement, that the public safety was imperilled... If the owner or tenant of a powder magazine should madly or wickedly insist upon smoking a cigar on the premises, can anyone doubt that a policeman or even a neighbor could justify in trespass for forcibly ejecting him and his cigar from his own premises?... The official position of the defendant, as mayor of Philadelphia, did not relieve him from his personal responsibility in its respect. But he has been sustained by the verdict of the jury, which is a justification of his alleged trespass."*fn*
But no jury has here justified the action of the police officers employed by the two defendant townships.
As the mayor in the Fields v. Stockley case pleaded a fire hazard, so also the defendant municipalities here pleaded a traffic hazard. But it is not clear how the
police removed an alleged traffic hazard by substituting for an erect live horse an invert and enormous carcass spread flatly over a thoroughfare. Nor is it apparent how the defendants justify the use of firearms for the removal of a "traffic hazard". We presume that one effective way to prevent traffic congestion would be to set up machine guns at busy intersections, but such a procedure would scarcely be acceptable to the law.
Springfield Township, in its preliminary objections, argues in effect that the presence of All's Over constituted an abatable nuisance, but it was never established that the horse was on a public highway. The Complaint, the averments of which must be accepted as true, declared that the plaintiff's horse was lodged in a culvert "off the paved section of the highway."
Did the policemen here use care commensurate with the danger the defendant municipalities conjure up in their preliminary objections? In the case of Herron v. Pittsburg, 204 Pa. 509, 513, decided in 1903, the plaintiff was injured by coming into contact with an electrically charged broken police call wire. He sued the City and recovered a verdict. This Court, in affirming the verdict, said: "It is the duty of all parties using a highly dangerous agent, to use care commensurate with the danger, in order to prevent injury to persons or property exposed to its influence... Cities are not excepted from the rule, and the fact that the agent is used or supervised under the police power does not excuse negligence in such use." When the wire broke, a duty of examination devolved upon the City. "Whether that duty was properly met", this ...