May 5, 1942.
A municipal enterprise, governmental in its nature, does not become a private business enterprise merely because the municipality is free to choose the manner of performing the work, or because financial benefit by the elimination of labor cost is incidentally derived therefrom. Highway improvement by whomsoever done, under legislative authority, retains its essential public character, and does not in any event become the private local work of the town. The quarrying and transportation of stone for reconstructing a street, together with the conveyance of the workmen to and from the quarry, are not independent private business activities of a municipality but merely a practical means for executing the municipality's primary project of such reconstruction. The rule of governmental immunity from tort liability extends to acts performed by a municipality beyond its territorial boundaries, for the character of the work is not changed merely because performed outside the municipality's limits. Laborers engaged in city street work and in quarrying stone therefor were paid by the Federal Government under an agreement between the city and the Works Progress Administration. The city paid for the engineering and supervision of the work, for the operation of trucks and machinery, for all materials; and transported the workmen engaged in quarrying to and from their work in trucks owned by the city and used mainly for the purpose of conveying the stone. Such a laborer negligently injured by the operator of a truck, while driving to the quarry to pick up the crew and tools and bring them home, cannot recover against the city.
CASE, to recover for personal injuries sustained by the plaintiff in Gorham on April 21, 1939, when he was struck by a motor truck owned by the city of Berlin and operated by an employee of its public works department. Facts agreed.
At the time of the accident the defendant was engaged in the reconstruction of a certain public highway in Berlin known as Sweden Street. Stone for the construction of a retaining wall, which was a part of the Sweden Street project, was quarried from a ledge situated about a mile south of the southerly boundary of Berlin and within the limits of the town of Gorham. The stone at that point was more readily obtainable and less expensive than that available in Berlin.
Most of the laborers engaged in the street work and in the quarrying of the stone were paid by the Federal Government under an agreement between the defendant and the Works Progress Administration. The defendant paid for the engineering and supervision of the work, for the operation of trucks and machinery, and for all materials. The workmen employed in quarrying were carried to and from their work in trucks owned by the defendant and used during the continuance of the project mainly for the purpose of conveying stone from the quarry to Sweden Street.
Just before the close of working hours on the day of the accident Kenneth A. Mitchell, the operator of one of these trucks, was driving toward the quarry to pick up the crew and tools and take them back to Berlin when he ran into and injured the plaintiff, who was s WPA laborer employed at the quarry. The negligence of Mitchell and the due care of the plaintiff are conceded.
The parties agree that if on the foregoing facts the defendant is "answerable for the negligence of the said Kenneth A. Mitchell, and is not immune by reason of being a municipal corporation engaged in a governmental function, and is not privileged or immune by any other rule of law," judgment may be ordered for the plaintiff for $1,650. If the defendant is held not to be responsible, judgment is to be ordered for the defendant, no costs.
Transferred by Blandin, J., without a ruling.
Hinkley Hinkley (Mr. Irving A. Hinkley orally), for the plaintiff.
Arthur J. Bergeron, City Solicitor (by brief and orally), for the defendant.
Plaintiff's counsel do not challenge the established doctrine that a municipal corporation is ordinarily immune from liability for injuries caused by the negligent performance of a governmental duty. Gilman v. Concord, 89 N.H. 182, 184, and cases cited. They contend, however, that the Sweden Street project was essentially a corporate rather than a governmental enterprise, since free labor and payment by the Federal Government to workmen who would otherwise have been on the city's relief rolls must have induced the undertaking. They also argue that the city in quarrying and transporting the stone was engaged in a private business transaction for its own "special advantage and pecuniary profit."
These contentions cannot be sustained. While it is true that a municipal corporation, when it acts in a private capacity for compensation, is responsible for the negligence of its agents precisely as though it were a private corporation (Douglas v. Hollis, 86 N.H. 578, 580, and cases cited), it is also true that a municipal enterprise does not become a private one merely because the municipality is free to choose the manner of performing the work or because financial benefit is incidentally derived from the choice. Gates v. Milan, 76 N.H. 135.
The character of the work here undertaken was that of highway improvement, and such work "By whomsoever done, under legislative authority, . . . retains its essential public character, and does not in any event become the private, local work of the town." O'Brien v. Derry, 73 N.H. 198, 199. Nor is the result affected by the particular method which the municipality employs in the prosecution of the work. In the present case the quarrying and transportation of the stone and the conveyance of the workmen to and from the quarry were not independent business activities but merely practical means of facilitating the execution of the primary project, which was the reconstruction of Sweden Street. See Balashaitis v. County, 296 Pa. St. 83.
The fact that the project was voluntarily initiated (see Gilman v. Concord, 89 N.H. 182, 184) and the economic reasons which may have induced the city to undertake the work are unimportant. The elimination of labor costs did not make the project any the less a governmental one. In the case of Hall v. Concord, 71 N.H. 367, an individual taxpayer donated to the city of Concord a substantial sum of money for the reconstruction of a particular strip of highway. If in that case acceptance of a private contribution could properly be held not to have divested the enterprise of its governmental character, certainly no different conclusion can well be reached where, as here, the contribution is made by the Federal Government.
The plaintiff further contends that the rule of governmental immunity from tort liability cannot extend to acts performed by a municipality beyond its territorial boundaries. The case of Whitefield v. Dalton, 80 N.H. 93, cited by counsel in oral argument, does not so hold, but merely relates to the taxability of extra-territorial real estate not devoted to a public use.
Since the municipality "is not a self-sufficing unit" (10 Minn. Law Rev. 475), it is thought to be the better rule which permits a municipal corporation, in the absence of express prohibition, to acquire and administer property outside the corporate limits "for legitimate municipal purposes." 3 McQuillin, Mun. Corp. (2d ed.), s. 1210. See, also, P.L., c. 42, s. 3; Somerville v. Waltham, 170 Mass. 160; Hafner v. St. Louis, 161 Mo. 34; Schneider v. Menasha, 118 Wis. 298; Anderson, "The Extraterritorial Powers of Cities," 10 Minn. Law Rev. 475, 484, 485.
In the case of Schneider v. Menasha, supra, it was held that a city which has express power to grade and pave its highways and to purchase and hold all real estate necessary or convenient for its use has implied authority to purchase a stone quarry located beyond its territorial boundaries for the purpose of obtaining rock for its streets.
It is true of course that the defendant could not "acquire governmental jurisdiction over a part" of Gorham (Canaan v. District, 74 N.H. 517, 528), but this does not mean that the character of its work was changed merely because it was carried on outside the city limits.
We believe the law of this jurisdiction to be in accord with the case of Colwell v. Waterbury, 74 Conn. 568, which, on the question of the non-liability of a city for negligence in the performance of a governmental undertaking, is cited with approval in Hall v. Concord, 71 N.H. 367, 370, 371, and in O'Brien v. Derry, 73 N.H. 198, 202. The plaintiff in the Colwell case was working for the city of Waterbury on a stone crusher located ten miles from Waterbury in the town of Cheshire. The stone there crushed was used by Waterbury for macadamizing one of its streets. In the course of the opinion it is said (p. 574): "If the city could do the work of breaking the stone more economically and successfully at the quarry than upon the street, and by the use of a machine than . . . by hand, it had the right to do the work at Cheshire by means of a stone-crusher, and the fact that it did so did not change the character of the work or of the duty which it was performing."
In accordance with the agreement of the parties the order is
Judgment for the defendant, no costs.