Hepburn v. City of Philadelphia , 149 Pa. 335 ( 1892 )

Opinion by

Mb.. Justice Steebbtt,

The evidence submitted to the jury was quite sufficient to warrant them in finding that the negligence of those engaged in digging the ditch, etc., on Arch street, was the sole cause of the injury suffered by the beneficial plaintiff in September, 1888. By necessary implication, the verdict in her favor was predicated of that finding of fact.

In view of all the circumstances disclosed by the evidence, the principle, respondeat superior, was applicable, and, prima facie, the city was liable, unless it was shown that the work referred to was legally let to an independent contractor, under whose supervision and control it was being prosecuted when plaintiff was injured. Evidence was accordingly introduced by defendant for the purpose of showing that proposals for digging the trench, filling in the same, repaving, etc., after the gas pipe was laid, were invited, and contract therefor was awarded to James Kane, the lowest and best bidder, in Aug., 1888. In that connection, the written contract between the city and Kane, dated Sept. 5, 1888, three days after plaintiff was injured, was given in evidence under objection. Predicated of that and other evidence, introduced for the purpose of showing that Kane, and not the city, was in actual charge of the work, etc., the following points for charge were presented:

“ 1. If the undisputed evidence in this case shows that the trench, into which the plaintiff fell, was dug by James Kane, under contract awarded to him on Aug. 1,1888, the negligence, if any, in this case, was his and not the city’s, and he, and not the city, is responsible therefor, and the verdict must be for the defendant.”

“2. That under all the evidence in this case, the verdict must be for defendant.”

The refusal of these cardinal propositions is complained of in the seventh and eighth specifications of error respectively.

If there had been any competent evidence to prove that the prima facie liability of the city as principal had been shifted, by contract or otherwise, to Kane as an independent contractor, these points should have been affirmed; but there was no such evidence. In view of the undisputed facts, in connection with the imperative requirements of art. XIY of the city charter, the affirmance of either of the points would have been manifest error. That article declares: “ All contracts relating to city affairs shall be in writing, signed and executed in the name of the city, by the officer authorized to make the same, after due notice, and, in cases not otherwise directed by law or ordinance, such contracts shall be made and entered into by the mayor. No contracts shall be entered into or executed directly by the city councils or their committees, but some officer shall be designated by ordinance to enter into and execute the same. All contracts shall be countersigned by the controller, and filed and registered by number, date and contents, in the mayor’s office, and attested copies furnished to the controller, and to the department charged with the work: ” Act June 1,1885, P. L. 51.

These clear and explicit requirements of the city’s organic law are not merely directory. On principle, as well as authority, they are mandatory. To hold otherwise would defeat the very object that the legislature had in view in thus specifically prescribing the manner in which all contracts relating to city affairs shall be executed, and expose the public funds to raids of every conceivable form. When the mode in which contracts by corporations shall be made and evidenced “ is specially and plainly prescribed and limited, that mode is exclusive and must be pursued: ” Dillon on Mun. Corp., 4th ed. § 449. Moreover, our act of March 21, 1806, declares that, “ in all cases where a remedy is provided or duty enjoined, or anything directed to be done by any act or acts of assembly .... the directions of the said acts shall be strictly pursued.” Again, “ where the whole aim and object of the legislature would be plainly defeated, if the command to do the thing in a particular manner, did not imply a prohibition to do it in any other, no doubt can be entertained as to the intention: ” Endlich on Statutes, § 431. It is unnecessary to cite other authorities on the subject. They are all to the same effect. We have no doubt that the requirements of the organic act, above quoted, are mandatory, and must be strictly pursued.

The undisputed evidence is, that the work on the street was commenced by Kane, under direction of the proper city officials, in Aug. 1888. The injury of which plaintiff complains was received on Sept. 2d. The paper offered as a contract between the city and Kane, for the purpose of showing that the latter was an independent contractor, was not executed until Sept. 5th, and was not countersigned until the 13th of same month. Kane’s bond to the city was given Sept. 5th, and entered uponthe 27th. When plaintiff was injured, and her cause of action arose, the relation of independent contractor between the city and Kane had not been created. There was no independent contractor in the case. The papers referred to, the advertisement, the bid, and the letter of acceptance, set forth the terms upon which the city was willing to enter into a contract with him, but neither singly nor altogether do they constitute a valid contract, nor in fact any contract. They are merely negotiations preparatory thereto. The contemplated contract was not executed or evidenced in the only way in which it could become effective to make Kane an independent contractor, until after the accident. At that time the relation of independent contractor, between him and the city, had no existence. The defendant entirely failed to show that its prima facie liability as principal had been shifted, by contract or otherwise, to Kane or anyone else, and hence there was no error in refusing to affirm defendant’s points.

This view of the case necessarily requires an affirmance of the judgment. All the controverted facts upon which the right of the plaintiff to recover depended, have been settled in her favor by the verdict. Further consideration of the questions presented by the record is unnecessary. There is no error therein of which the defendant has any just reason to complain.

Judgment affirmed.

May 27, 1892, petition by plaintiff for reargument, counsel contending as follows : The contract between the city and Kane was completed August 1, 1888, when the letter advising him of the awarding of the contract was sent to him : City of Phila. v. Ogden, S. C. Pa., Jan. T., 1885, No. 118; Campbell v. City, 10 W. N. C. 221; Kerr v. City, 8 Phila. 292.

While the act of June 1, 1885, is mandatory upon the city in reference to its contracts, the rights of third parties are not affected by the mandate of the legislature requiring the engagements of the municipality to be made in a particular way.

June 1, 1892, Per Curiam: Reargument refused.