Nelson v. Babcock , 188 Minn. 584 ( 1933 )

The principles of law applicable to the liability of public officers for their own torts or those of their subordinates and employes are well established. Those officers who exercise functions within their authority which involve judgment and discretion are not liable for the results unless the acts complained of were not only unnecessary but corruptly or maliciously done. Wilbrecht v. Babcock, 179 Minn. 263,228 N.W. 916. If in discharging purely ministerial duties such an officer is guilty of a personal act of misfeasance, he is liable to one injured thereby. Moynihan v. Todd,188 Mass. 301, 305, 74 N.E. 367, 108 A.S.R. 473. Unless he has been guilty of want of care in the selection of his subordinates or employes, he is not responsible for their tortious acts where they are not in his private service but are themselves servants of the government. He is responsible when he personally coöperates in the tort. Michel v. Smith, 188 Cal. 199,205 P. 113. As said in City of Duluth v. Ross, 140 Minn. 161, 164,167 N.W. 485, 486:

"It has been held in many decisions that a public officer, in the absence of statute, is not responsible for the misfeasance or positive wrongs, or for the nonfeasances or omissions of duty of the persons properly employed by or under him in the discharge of his official duties. Throop, Public Officers, § 592, and cases cited. Robertson v. Sichel, 127 U.S. 507,8 S.Ct. 1286, 32 L. ed. 203; 29 Cyc. 1445, and cases cited; 23 Am. Eng. Enc. (2 ed.) 382 and cases cited.

"This seems to be well settled law as applied to public officers and agents of certain classes. In Robertson v. Sichel,127 U.S. 507, 8 S.Ct. 1286, 32 L. ed. 203, the officer was collector of the Port of New York; in U.S. v. Rodge (D.C.) 214 F. 283, and in Keenan v. Southworth, 110 Mass. 474,14 Am.R. 613, the public official held not liable for the act of a subordinate was a postmaster; in Sawyer v. Corse, 17 Gratt. 230, 94 Am. D. 445, a mail contractor; in Donovan v. McAlpin,85 N.Y. 185, 39 Am. R. 649, school trustees were held not liable for the negligence of a workman employed by them; McKenna v. Kimball, 145 Mass. 555, 14 N.E. 789, holds a school committee not liable for the negligence of an employe."

In Strickfaden v. Greencreek Highway District, 42 Idaho, 738,763, 248 P. 456, 463, 49 A.L.R. 1057, 1071, 1072, the court said:

"The rule of respondeat superior does not apply where public officers are sought to be bound by the negligence of subordinate officers or employes, unless there has been a failure to exercise due care in the selection of such subordinates or the officers have knowledge of the negligent acts of the inferior officers."

In Robertson v. Sichel, 127 U.S. 507, 515, 8 S.Ct. 1286,1290, 32 L. ed. 203, the Supreme Court of the United States said:

"The head of a department, or other superior functionary, is not in a different position. 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. * * *"

See also Sawyer v. Corse, 17 Gratt. 230, 94 Am. D. 445; Donovan v. McAlpin, 85 N.Y. 185, 39 Am. R. 649; Keenan v. Southworth, 110 Mass. 474, 14 Am. R. 613.

In the case of Michel v. Smith, 188 Cal. 199, 201,205 P. 113, 114, the supreme court of California said:

"There is a well defined exception to the general rule which renders one responsible in a civil action for the tortious acts of those employed by or under him. 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 coöperated therein."

"This immunity rests upon obvious considerations of public policy, the necessities of the public service and the perplexities and embarrassments of a contrary doctrine." Mechem, Public Officers, § 789.

The rule is different as applied to such administrative officers as sheriffs, registers of deeds, treasurers, auditors, or clerks of court charged with the performance of duties to individuals. City of Duluth v. Ross, 140 Minn. 161,167 N.W. 485.

What are the facts to which we must apply these rules in the case at bar? The defendant formulated no plan to make the highway safe, but left the matter to Mr. Rosenwald, his maintenance engineer, who in turn left the manner of improving the road to his district engineer, Mr. Mold. Babcock was never upon the work; he never made a suggestion or in any manner took part in carrying out the improvement. He may have ridden over the road, but there is no evidence of this. The plaintiff himself makes no claim to the contrary, and at one place in the record declares his belief that Babcock was never on the work. I find no justification for saying that Babcock in any way either participated in or ratified what was done. He neither directed the work to be done in the manner in which it was done nor, as far as the record discloses, did he know it was being done. Certainly there is no evidence that he knew how it was being done. Although the record does not show it, it may be that he personally caused the condemnation proceedings to be instituted by the attorney general, following the injunction proceedings, the nature of which are not disclosed by the record. There is nothing more to be inferred from that fact than that he found the improvement required more land than theretofore expected. The institution of such proceedings certainly could not be construed as a ratification of previous tortious acts by subordinates, and to construe the condemnation as a determination to dump rock on plaintiff's land is going beyond the realm of legitimate inference. It was quite possible to make other disposition of such rock as it might be necessary to dislodge. Trucks were available on the work for hauling to other places where rock might be needed. Certainly it is not legitimate to infer that the defendant intended to dislodge the entire area condemned and pile the rocks elsewhere on plaintiff's land. An intent to commit a trespass on plaintiff's land is a strange inference to be drawn from the purchase of part of it. Even the able counsel for the plaintiff advanced no such theory. It was his position, and it seems to be that of the majority, that defendant is liable for the acts of his properly selected subordinates if they commit some tortious act outside of the right of way and hence outside of defendant's authority. There is no legal basis for such theory. If there were, it would upset the entire exemption of public officers from liability for the acts of their subordinates, because of course such officers are never authorized to commit torts. To permit a recovery here "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." Robertson v. Sichel,127 U.S. 507, 515, 8 S.Ct. 1286, 1290, 32 L. ed. 203.

The case of Hopkins v. Clemson Agric. College, 221 U.S. 636,31 S.Ct. 654, 55 L. ed. 890, 35 L.R.A.(N.S.) 243, chiefly relied upon by the majority, would be in point if defendant had himself taken personal charge of the work and directed the trespass and were claiming immunity from suit. I see no application for it here. In that case the defendant corporation claimed immunity from suit as an agency of the state and entered a plea to the jurisdiction. In the case at bar defendant claims no immunity from suit. He asserts that as to a public officer the doctrine of respondeat superior does not apply, that he has committed no tort, and that there is no cause of action against him. The distinction is carefully pointed out in the opinion in the Hopkins case, and nothing is said which detracts from the views expressed by the same court in Robertson v. Sichel, 127 U.S. 507, 8 S.Ct. 1286,32 L. ed. 203.

The defendant excepted to that part of the charge which authorized the jury to include the damages due to the careless manner in which the blasting was conducted, in consequence of which rocks were cast upon plaintiff's buildings and his windows were shattered. Doubtless the men in charge of the blasting are liable for their own negligence; but, since defendant is not charged with negligence in their selection and did not participate in the blasting or prescribe how it should be done, he is obviously not liable, and the error is prejudicial.

I think there should be judgment for defendant notwithstanding the verdict. In default of that he is entitled to a new trial.