Appeal, No. 67, Jan. T., 1960, from judgment of Court of Common Pleas of Cumberland County, May T., 1959, No. 685, in case of James F. Stouffer v. Ralph D. Morrison et al. Judgment affirmed.
Irwin Albert, with him Robert M. Frey, and Marian Schwalm Furman, for appellant.
George F. Douglas, Jr., with him Faller and Douglas, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BOK.
The plaintiff has sued three policemen and the Borough of Shippensburg, Cumberland County, for an alleged personal assault upon him by the officers. The borough filed preliminary objections in the nature of a demurrer, averring immunity from liability. The preliminary objection was sustained and the plaintiff has appealed.
In Boorse v. Springfield Township, 377 Pa. 109 (1954), 103 A.2d 708, Mr. Chief Justice STERN said: "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."
The court below, by President Judge SHUGHART, filed the following opinion, lacking only its introductory paragraph, and we approve:
"It is well settled in this Commonwealth that generally a municipality is not liable for a trespass committed by one of its policemen. In Boorse v. Springfield Twp., 377 Pa. 109, two police officers discovered a valuable racing mare with one leg wedged in a culvert at the edge of a public highway. Without notifying the owner or giving him a chance to extricate the
mare the officers destroyed the animal. In sustaining the preliminary objection of the township to the plaintiff's complaint, Chief Justice STERN said at page 110:
"'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.'
"This same doctrine has been followed in a multitude of other cases, a list of which is set forth at page 111 of the ...