Supreme Court of Appeals West Virginia.
November 30, 1898.
SUCH TOWN IS NOT LIABLE FOR THE NEGLIGENCE OF ITS OFFICERS, OR AGENTS, AS TO POWERS AND FUNCTIONS OF A PUBLIC GOVERNMENTAL CHARACTER.
R.B. Bartlett brought his action to recover damage's against the town of Clarksburg for personal injuries sustained by plaintiff by reason of the discharge by private persons of firearms, squibs, rockets, and fireworks at a narrow place in one of the streets of said town, on the ground that the said fireworks were discharged by the consent and written permission of the Mayor, and with the knowledge and consent of the Council and police and other officers of said town, and that the said discharge of firearms, fireworks, etc., was of such a nature as to be a public nuisance, whereby the team of horses of plaintiff attached to his buggy became frightened and unmanageable, and beyond the control of plaintiff, and ran away, throwing plaintiff from his buggy seat, and badly injuring him, for which injuries plaintiff alleges said town is liable to him for damages. Defendant demurred to the declaration. The court sustained said demurrer and gave judgment for defendant and plaintiff appealed.
The Court says:
No ground of demurrer is contended for, except that the town is not liable, and that an action cannot be maintained against the town for the wrong complained of. In Speir v. City of Brooklyn the judge says: "It is the settled doctrine of the courts that a municipality is not bound merely by the assent of its executive officers to wrongful acts of third persons; nor could the Mayor bind the city by a permit for tho granting of which he has no color of authority from the common council, and which was not within the general scope of his authority." The case of Spear v. City of Brooklyn is supported by some other authorities; and I confess I am largely in sympathy with the decision in that case, and agree with Judge Okey as to the nuisance in the case of Robinson v. Greenville, 42 Ohio St. 630, where he says: "That firing of cannon in a public street of a municipal corporation, except in case of imperative and urgent necessity, is an intolerable nuisance, and that all persons engaged in such unlawful act are personally liable for all damages caused thereby, are propositions concerning which there is no room for difference of opinion. But a very different question is presented when it is attempted to fasten liability for such injuries on a municipal corporation."
In the case at bar the acts complained of are equally as great a nuisance as the firing of cannon, as stated in above case. Appellee contends that "the law in this State has been settled in at least two cases upon all fours with this case."
[The court there quotes a number of cases holding that a municipality is not liable in such cases, and concludes.]
Authorities might be multiplied indefinitely. While the decisions are not all on one side, yet the great weight of the authorities, including those of our own state, is with the action of the Circuit Court in this case. In Brown's Administrator v. Town of Guyandotte, 34 W. Va. 299, it is held that, "as to the powers and functions of a town of a public governmental character, It is not liable for damages caused by the wrongful acts or negligence of its officers or agents therein."
The judgment will have to be affirmed.