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COMMONWEALTH TO USE ORRIS v. ROBERTS ET AL. (05/02/58)

May 2, 1958

COMMONWEALTH TO THE USE OF ORRIS
v.
ROBERTS ET AL., APPELLANTS.



Appeal, No. 190, March T., 1957, from judgment of Superior Court of Pennsylvania, April T., 1956, No. 165, reversing judgment of Court of Common Pleas of Allegheny County, Jan. T., 1956, No. 1911, in case of Commonwealth of Pennsylvania, to use of Pete Orris, v. David B. Roberts et al. Judgment reversed; reargument refused May 29, 1958.

COUNSEL

William H. Eckert, with him Ralph H. Smith, Jr., Roderick G. Norris, and Smith, Buchanan, Ingersoll, Rodewald & Eckert, for individual defendant, appellant.

J. M. McCandless, for defendant surety company.

Julius J. Lorenzi, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Jones

[ 392 Pa. Page 574]

OPINION BY MR. CHIEF JUSTICE JONES

This action is assumpsit was instituted in the name of the Commonwealth to the use of Pete Orris against David B. Roberts and the Continental Casualty Company, as surety on Roberts' fidelity bond as prothonotary of Allegheny County, to recover damages suffered by the use-plaintiff through the negligence of a clerk in the prothonotary's office.

The defendants filed preliminary objections to the complaint setting forth, in effect, that the doctrine of respondeat superior is not applicable to Roberts in his capacity as prothonotary and that, under the facts of this case, there is no liability on him and the defendant surety under his official bond. The court sustained the preliminary objections and entered judgment for the defendants. The plaintiff appealed to the Superior Court which reversed and entered judgment for the plaintiff on the ground that he had a cause of action against Roberts on the principle of respondeat superior and that, consequently, the Casualty Company was also liable under the terms of its surety bond. Because of the general importance of the question involved, we granted an allocatur.

The facts are not in dispute. Pete Orris, the use plaintiff, received from Edith M. Whitaker, her judgment note for $800. Orris' attorney delivered the note to the cashier (receiving clerk) in the office of the

[ 392 Pa. Page 575]

    prothonotary of Allegheny County for the purpose of having the note entered of record as a judgment. The cashier, in regular course, handed the note to the clerk in the prothonotary's office whose duty it was to index judgments. The clerk is an employee of the County of Allegheny allocated to the prothonotary's office. Under the "Russell Index System" which is used in the prothonotary's office for the indexing of judgments, Orris' judgment against Whitaker should have been indexed under the key letters "TR". Instead, it was improperly indexed under the key letter "T" alone. The complaint does not aver that the prothonotary ordered or directed the manner of indexing the note or had any knowledge of it. Had the judgment been properly indexed, it would have been a lien on property in Allegheny County which Miss Whitaker, the debtor, owned at the time of the filing of the note for entry but which she subsequently sold and conveyed to a third person for a consideration of $11,000 before the error in the indexing of Orris' judgment was detected and corrected. As a consequence, Orris has not been able to collect on his judgment against Whitaker.

The Superior Court based its action on the conclusion that "the exercise of control in the assignment of duties, and the supervision of the work amongst subordinates renders the prothonotary liable for the negligence of his employees in the performance of their duties even under the theory of 'respondeat superior'" and held that, since "the prothonotary is liable for the default of his clerk in the instant proceeding, it follows that the surety on his bond is also liable." The Superior Court's decision is in error in both particulars.

The rule in Pennsylvania, was well as in other jurisdictions, is that a public officer is not liable for the negligence of his official subordinates unless he commanded

[ 392 Pa. Page 576]

    the negligent act to be done. This principle and its rationale were graphically set forth in Boyd v. The Insurance Patrol of Philadelphia, 113 Pa. 269, 278, 6 A. 536, where this court said: "It is true also, as a general rule, that a public officer is not liable for the negligence of his official subordinates, unless he commanded the negligent act to be done: Schroyer v. Lynch, 8 Watts 453; the rule is founded in considerations of public policy (Sawyer v. Corse, 17 Grat. 230) has been long recognized, and is one of general application. 'The distinction generally turns upon the question whether the persons employed are his servants, employed voluntarily or privately, paid by him and responsible to him, or whether they are his official subordinates, nominated perhaps by him, but officers of the government; in other words, whether the situation of the inferior is that of a public officer or a private servant.' In the former case the official superior is not liable for the inferior's acts, in the latter he is: American Lead. Cases 641. A subordinate officer, when he is an independent officer, must stand or fall by himself; and to him, unless otherwise provided by statute, the maxim respondeat superior does not apply: Wh. Neg., 289."

In Schroyer v. Lynch, 8 Watts 453, 458, cited in the Boyd case, supra, the plaintiff sued the postmaster of Pittsburgh for failure to forward to the plaintiff a letter containing bank notes. The negligent acts alleged were performed by the postmaster's clerks or assistants who were appointed by him but paid by the United States Government. This court upheld the trial judge's charge that the defendant was liable only for his own personal misconduct or neglect and not for that of his subordinates. Chief Justice GIBSON spoke as follows: "That the privity which springs from appointment to office constitutes the relation of master

[ 392 Pa. Page 577]

    and servant betwixt the immediate parties, is a principle on which no government has been, or can be, constructed; the man is the servant of the party that pays him."

The Supreme Court of the United States declared in Robertson v. Sichel, 127 U.S. 507, 515-516, that, "A public officer or agent is not responsible for the misfeasances or positive wrongs, or for the nonfeasances, or negligences, or omissions of duty, of the subagents or servants or other persons properly employed by or under him, in the discharge of his official duties. Story on Agency, § 319." In that case, it was held that a collector of customs is not personally liable for the negligence of a subordinate in keeping the trunk of an arriving passenger on a pier rather than properly sending it to the public store. As a result of the subordinate's negligence, the trunk was destroyed by fire. The Supreme Court recognized that "The subordinate who was guilty of the wrong, if any, would undoubtedly be liable personally for the tort, but to permit a recovery against the collector, on the facts of this case, would be to establish a principle which would paralyze the public service. Competent persons could not be found to fill positions of the kind, if they knew they would be held liable for all the torts and wrongs committed by a large body of subordinates, in the discharge of duties which it would be utterly impossible for the superior officer to discharge in person." Continuing, the Supreme Court further pointed out that "In Keenan v. Southworth, 110 Mass. 474, it was held, that a postmaster was not liable for the loss of a letter, occasioned by the negligence or wrongful conduct of his clerk. The Court said: 'The law is well settled, in England and America, that the postmaster general, the deputy postmasters, and their assistants and clerks, appointed and sworn as required by law,

[ 392 Pa. Page 578]

    are public officers, each of whom is responsible for his own negligence only, and not for that of any of the others, although selected by him and subject to his orders,' The court cited to sustain this view [cases from many jurisdictions including Schroyer v. Lynch, 8 Watts 453]." That Robertson v. Sichel, supra, continues to be recognized as the controlling federal authority on the point under consideration, see Larson v. Domestic & Foreign Corp., 337 U.S. 682, 688, f.n. 8.

Outside jurisdictions hold to like effect. In Dowler v. Johnson, 225 N.Y. 39, 121 N.E. 487, Judge CARDOZO said "We do not doubt the rule invoked by counsel for the defendant, and sustained by superabundant citations, that public officers are not liable for the negligence of their subordinates unless they cooperate in the act complained of, or direct or encourage it [citing cases including Robertson v. Sichel, 127 U.S. 507 and Story on Agency, § 319]. That is at least the general rule, and, if it is subject to any other qualifications, they are not now material."

In State v. Kolb, 201 Ala. 439, 78 So. 817, the State Commissioner of Agriculture and Industries was held by the Supreme Court of Alabama not to be liable for the default of his special food and drug clerk. It was there stated that "The general proposition that an officer is not liable for the defaults and misfeasances of his clerks or assistants, even though they are appointed by him and are under his control, in the absence of allegation and proof that the officer was negligent or at fault in failing to exercise proper care and prudence in selecting the assistant or clerk, or in failing to properly supervise and superintend the acts and services of such employe in the work for which he was so selected, the doing, or failure to do which caused the loss or injury or damage, is well settled. In such cases, in the absence of a special statute or law to the contrary,

[ 392 Pa. Page 579]

    the assistant or clerk, and his bondsmen if any he have, are liable, but not the officer or his bondsmen. This has been repeatedly decided by this and most other courts." See, also, to similar effect, Smith v. Olander, 251 Mich. 503, 232 N.W. 364.

In Union Bank & Trust Co. of Los Angeles v. Los Angeles County, 11 C.2d 675, 81 P.2d 919, the clerk of the Superior Court was held not to be liable, under the doctrine of respondeat superior, for the embezzlement of funds by his chief deputy even though the clerk was held to be liable under the terms of his official bond. The court there said, "We are satisfied that [the clerk of the Superior Court] and his sureties are not liable under common-law principles of tort or agency." Again, in Van Vorce v. Thomas, 18 C.A.2d 723, 64 P.2d 772, the marshal of the Los Angeles municipal court was adjudged not to be liable for injuries inflicted by the deputy marshal while attempting to serve process. In the course of its opinion, the court pertinently observed that "It is, of course, utterly impossible for the marshal of the Los Angeles municipal court to perform, personally, all the duties demanded of his office. Not by choice, but of necessity, he depends upon his deputies ...." And, in Hilton v. Oliver, 204 Cal. 535, 269 Pa. 425, the Supreme Court of California held that the public trustees of a drainage district were not liable for the negligence of their employees in piling weeds on the bank of the drain if the trustees did not direct or countenance the particular negligent acts.

The Councilmen of the City of Portland, Oregon, were held not to be liable in Colby v. City of Portland, 85 Ore. 359, 166 P. 537, for the negligence of their subordinates in failing to keep the public streets in good repair. The court expressly recognized that, "It is the universal rule that a public officer is not personally liable for the negligence of an inferior officer,

[ 392 Pa. Page 580]

    unless he, having the power of selection, has failed to use ordinary care in the selection. Story on Agency (9th Ed.) § 321; [and cases cited]."

In Bowden v. Derby, 99 Me. 208, 58 A. 993, the following appears in the opinion of the court: "The defendant was the street commissioner of the city of Rockland, and in that capacity had charge or the erection of the wall. He employed the laborers, who were paid by the city. In all this he acted as a public officer, and was responsible only for reasonable care in the selection of men materials which he supplied. Beyond this he was under no liability, except for his own acts. The relation of master and servant did not exist between the defendant and the laborers employed on the work."

In Casey v. Scott, 82 Ark. 362, 101 S.W. 1152, where a Chief of Police was held not to be liable for the wrongful conduct of his appointee, the court quoted the following from 23 Am. & Eng.Ency.(2d Ed.), p. 382: "'It is a well-settled rule that a public officer is not responsible for the acts or omissions of subordinates properly employed by or under him, if such subordinates are not in his private service, but are themselves servants of the government, unless he has directed such acts to be done, or has personally cooperated in the negligence.'"

The rule was said to be broadly applicable in Clough v. Worsham, 32 Tex.Civ.App. 187, 193, where the superintendent of the State Lunatic Asylum was held not liable for the negligent conduct of a subordinate in improperly allowing an incompetent patient to be taken outside the grounds of the asylum for the purpose of doing work. The court quoted from Story on Agency, which has been cited and followed in many of the cases hereinabove referred to, as follows: "And here the doctrine is now firmly established, that public

[ 392 Pa. Page 581]

    officers and agents are not responsible for the misfeasances or positive wrongs, or for the nonfeasances or negligences or omissions of duty, of the subagents or servants or other persons properly employed by and under them, in the discharge of their official duties. ... The rule which we have been considering, that where persons are acting as public agents they are responsible only for their own misfeasances and negligences, and not for the misfeasances and negligences of those who are employed under them, if they employed persons of suitable skill and ability, and have not cooperated in or authorized the wrong, is not confined to public officers or agents of the government in a strict legal sense; but it applies equally to other public officers or agents engaged in the public service or acting for public objects, whether their appointments emanate from particular public bodies or are derived from general laws, and whether those objects are of a local or of a general nature."

22 Ruling Case Law 487 states the prevailing rule as follows: "Public officers and agents of the government are not liable for the acts or defaults, negligence or omissions of subordinate officials in the public service, whether appointed by them or not, unless they direct the act complained of to be done, or personally cooperate in the negligence from which the injury results. Where the subordinates have been appointed by them it is sufficient if they have ...


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