Bartlett v. Crozier — 15 Johns. 250

Majority

p. 250

Bartlett against Crozier.

Headnote

mE¡geh¡ssuffered by the act, or omission of a public officer, contrary to his duty, the party maintdna™ac> againsuhedfi-

an highways wiifully neglects to repair a bridge^ within reason ofwhicS horsepl¿iislff s breakfhis fegd caseCtmayntbe

the declaration in such action should allege that the commissioners of the town had provided materials, and that the defendant had the means of ¿naking the repairs: but the omission is cured after verdict, by the common law intendment, that the defect was supplied on the trial, by proof.

IN' ERROR, to the court of common pleas of the county 0f Washington. °

The defendant in érror brought an action of trespass on . . . r the case, in the court below against the plaintiff in error. The declaration contained three counts which were substantially the same, and stated, that the defendant below was; on the 5th of April, 1814, duly elected an overseer of highways for the town of Salem, in the county of Washing* (on for district No. 14, in the said town, and took the 1 , ' oath prescribed by law, which was duly filed with the town clerk : that he undertook the execution of his office; and that not regarding, but neglecting his duty, he negligently and wilfully suffered a certain bridge, in the said district, and on a public highway therein, to be and remain, for the space three months, broken, dangerous, and unfit to be travelled over, he well knowing the premises ; and that during that

p. 251

time the plaintiff below was driving his mare over the bridge, and by reason of the defendant’s wilful negligence in not repairing, the mare fell through the bridge and' broke her leg, &C. •

The defendant below pleaded the general issue; and a verdict having been found on the trial for the plaintiff below, the defendant brought a writ of error, and assigned for error that the declaration was insufficient in law to maintain the action.

Crary, for the plaintiff in error, contended,

1. That an action does not lie at common law against the overseers of highways, for not repairing a road or bridge. The town or parish at large is bound to repair, unless by prescription, the burden is thrown on some particular person, by tenure. (King v. Sheffield, 3 Term Rep. 106. 111. 1 Ld. Raym. 725. 5 Burr. 2700. 4 Burr. 2510. 3 Comyn’s Dig. 31. Chimin, (B. 2. B. 3.) Where a highway is out of repair, the whole parish is indictable, and if a bridge is out of repair, the whole county are answerable. (2 Inst. 700, 701. 5 Term Rep. 598. 2 Bl. Rep. 685. Vent. 183.)

Again; this action is not maintainable on the statute." (2 N. R. L. 270. Sess. 36 ch. 33.) The statute (s. 14.) gives a penalty merely for neglect of duty. The English statute is analogous, and creates an officer called a surveyor of highways, with similar powers. (2 Burr. 805. 832. 834. 2 Hawk. 302. n. 3. 5 Johns. Rep. 375 . 1 Johns. Rep. 54 . Bouton v. Nelson, 3 Johns. Rep. 474 . Freeman v. Cornwall, 10 Johns. Rep. 471 .)

The overseers act under the authority and direction of the commissioners of highways. They are to warn all persons assessed to work on the highways, (sect. 3.) " They cannot compel persons to work. In case of neglect they can only complain to a justice of the peace, who may issue a warrant to levy the fines, (s. 9.) If this action, can be maintained, an overseer might be obliged to repair a road at his own expense.

Again ; if an action lies against the overseers for a breach of duty, the plaintiff ought to state, in his declaration, what the duty is, and show how it has been violated. A mere general

p. 252

averment of a breach of duty is not sufficient, It is too general and indefinite. The defendant cannot come prepared to meet it. It is one of the first principles of pleading, as Mr. J. Buller observes, to state facts for the purpose of informing the court whose duty it is to declare the law on those facts, and to apprise the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it. ( 1 Doug. 159 .) Where the law presumes the affirmative of a fact, the negative must be proved by the party averring it in pleading. ( Williams v. East India Company, 3 East, 192.) And where an act is required to be done by a person, the omission of which would be a criminal neglect of duty, the law presumes the affirmative. So, here, the law will presume the overseer did his duty in this case. The Statute prescribes penalties, but gives no action against the overseer. The plaintiff should show that the commissioners made the assessment and delivered the warrant to the overseers, and that they had the means of making the repairs.

Foot, contra,

said, that he did not pretend that an action would lie on the statute, further than what arises from its being made the duty of the overseers of highways to keep the roads and bridges in repair. Ashurst, J. in The King v. Sheffield, admits, that if it was the duty of any particular person to repair, an action would lie against him. The principle on which this action is brought is this, that where a public officer neglects his duty, by reason thereof a person is injured, an action on the case lies against such officer, at the suit of the party injured by such culpable omission. (3 Bl. Com. 123. Jenner v. Joliffe, 9 Johns. Rep. 381 . Cro. Jac. 446. 478. 1 Ld. Raym. 486. Co. Litt. 56. a.)

As to the objection that we have not properly alleged what was the defendant’s duty, nor that the commissioner delivered him the assessment list, or directed him to repair this particular bridge, the answer is, that these defects are cured by the verdict. (1 Chitty’s Pl. 318. 1 Saund. 238. n. 1. 1 Johns. Rep. 276 .)

In Townsend, v. President and Directors of Susquehannah Turnpike Co. ( 6 Johns. Rep. 90 .) which was an action on

p. 253

the case, for the injury sustained by the plaintiff, by the fall of a bridge on the road, the court held the action maintainable.

Crary, in reply,

said, that in the case of Townsend v. The Susquehannah Turnpike Company, the defendants were owners of the highway, and received a toll from the passengers, and were bound, by the act of their incorporation, to keep the road in repair. Here the defendant had no interest in the highway or bridge. It was not his particular duty to keep this bridge in repair, but the whole town, or the occupiers, of the adjoining land, were bound. The only evidence of any neglect of duty in the defendant is the accident which happened to the plaintiff’s horse.

But if the defendant was liable, he could not be made so on this declaration. It should be shown that the plaintiff had power and authority to do the act, the omission of which is made the ground of action. (5 Comyn's Dig. 590. Pleader, (O.) The overseers have no power but what is derived through the commissioners of highways.

delivered the opinion of the court. This is a writ of error to the common pleas of Washington; and the error relied on is, that the declaration contains no cause of action. The declaration sets forth, in substance, that Bartlett was duly chosen and qualified, according to law, an overseer of highways, for district number fourteen in the town of Salem, and took upon him the office ; that disregarding his duty in that behalf, and wholly neglecting the same, he wilfully suffered a certain bridge in said district, and on a public highway therein, to be and remain, for the space of three months, broken, dangerous, and unfit to be travelled over, he well knowing the premises ; and that during that time Crozier was driving a certain mare whereof he was possessed over the said bridge, and by reason of Bartlett's wilful negligence as aforesaid, in not repairing said bridge, the said mare fell through the same and broke her leg, whereby, &c.

This is the substance of all the counts. To these the defendant pleaded not guilty. The jury found him guilty, and assessed the plaintiff’s damages.

p. 254

The broad question is, whether a public officer, who wilfully neglects his duty, is responsible to any individual who suffers damage and loss in consequence of that neglect ?

A preliminary objection deserves first to be disposed of., It is insisted that it is not averred that the commissioners of the town had done their duty in providing materials for the repair of the bridge, nor taken the steps required of them; and that it is not alleged that the defendant below had the means of making the necessary reparation. It is a settled rule, that if the issue joined be such as necessarily required, on the trial, the proof of facts either imperfectly stated or omitted, and without which it is not to be presumed that the court would direct, or the jury give the verdict, such defect or omission is cured by the verdict. (1 Saund. 228. a.)

The declaration charges a wilful" neglect of duty on the part of the overseer, and this presented the very gist of the inquiry; it would not have been a wilful neglect of duty* or any neglect at all, if the default in repairing the bridge could have been attributed to the commissioners, or if the overseer had not the means in his hands to repair it,, or if he had been ignorant of the want of repair, unless the ignorance was culpable ; and we must now consider it as established by the verdict that there was an omission of duty on the part of the overseer, or else the verdict could not have een given.

There can be no doubt, under the act to regulate high-v that it is the duty of the overseer of highways to rep he bridges within his particular district. (2 R. L. 270. § 3. 28.) All, therefore, that has been urged as to the duty to repair roads by the owners of the adjoining land, at common law, is entirely, inapplicable.

It is a general principle of law, that wherever an individual has " sustained an injury, by the misfeasance or nonfeasance of an officer, who acts, or omits to act, contrary to his duty, the law affords redress by an action on the case adapted to the injury. Lord Kenyon, in the case of Russell v. The Men of Devon, (2 Term. Rep. 671.) admits, that an action will lie by an individual for an injury sustained by omitting to repair a road, against any other individual bound

p. 255

to repair it, though he did not think the action lay at common law against the county.

Without multiplying references, the principle on which this action rests, was recognized by this court in the case of Townsend v. The Susquehannah Turnpike Company, ( 6 Johns. Rep. 90 .)

That was an action founded on an injury done the plaintiff in the loss of a horse, by reason that one of the bridges of the corporation was so ruinous as to fall, when the plaintiff was crossing it with his horses. The court held that the action was sustained, on the ground that the corporation was bound to bestow ordinary care in the construction and repair of their bridges.

The duty of the corporation in that case was an implied one, resulting from their ownership of the road, and the reception of toll. In the present case, the duty results from the acceptance of an office, that it shall be well and faithfully executed; and whoever suffers from its unfaithful execution, must have his remedy. It stands on the same principle as actions against ministerial officers for their neglect to execute their offices, to the injury of another; as against a sheriff for not serving a writ, or against an inn-keeper for refusing to receive and accommodate a traveller.

Judgment affirmed,

p. 258

the indemnity of the sheriff, and to save him harmless. (Barry v. M andell, 10 Johns. Rep. 563 . Tillman v. Lansing, 4 Johns. Rep. 45 . M'Elroy v. Mancius, 13 Johns. Rep. 121 .) Is not the surety equally bound ? Can he avail himself of the circumstance of the prior voluntary escape ? It is sufficient that he executed the bond voluntarily, and for a good consideration. The deed imports a sufficient consideration, and is binding, unless shown to be illegal and void. The surety cannot urge that his principal was exempted from the arrest, for he might waive that exemption. (Leal v. Wigram, 12 Johns. Rep. 88 .) Admitting that Lawrence might avoid the bond for duress ; yet the surety in a bond cannot avail himself of such a ground of defence. (Huscombe v. Standing, Cro. James, 187. 5 Comyn's Dig. 644. Plead. ( 2 W. 19 .))