[243 U.S. 1, 2] Messrs. Levi H. David and Alexander Wolf for petitioner.
Messrs. Conrad H. Syme and Percival H. Marshall for respondent.
Mr. Chief Justice White delivered the opinion of the court:
We state only so much of the case as is essential to an understanding of the disposition which we are constrained to make of it.
The action was commenced in May, 1912, by the petitioner as administratrix of the estate of her husband, to recover from the District of Columbia, as a municipal corporation, damages suffered as the result of his wrongful death in September, 1911. Briefly, it was alleged that the District had contracted to make an addition to a school building to it belonging, known as the McKinley Manual Training School, and to put in order and adjust the boilers in the basement of the old building, and while the deceased was engaged under a subcontractor in doing the latter work, he was killed by an explosion of illuminating gas which had escaped from the gas pipes which were in the basement. It was alleged that the gas had been permitted to escape and remain in the basement through the neglect and wrongful conduct of the municipality or its agents. The averments as to the negligence of the municipality both in permitting the escape of the gas and as to allowing it to remain after notice of the dangerous condi- [243 U.S. 1, 3] tion, and as to the absence of neglect on the part of the plaintiff's intestate, were ample. There was a subsequent amendment to the petition, alleging facts which, it was averred, established that the conduct of the District as to the escape and failure to remove the gas was equivalent to the creation by it of a public nuisance. The defense was a general denial and a special plea setting up a release on the part of the plaintiff, which latter, on demurrer, was stricken out. There was a verdict and judgment in favor of the plaintiff, and an appeal was taken by the defendant municipality. The court of appeals reversed the judgment and remanded, with directions to grant a new trial, one member of the court dissenting. The appellee alleging that the case in her favor could not be bettered at a new trial, asked that a final judgment be entered, upon the theory that the case would be then susceptible of review in this court on error. On the refusal of this prayer, a petition for certiorari was here presented.
The basis asserted for the application for certiorari was that the court below, disregarding a decisive line of decisions by this court holding that a municipality, the District of Columbia, was responsible for positive torts committed by its servants or agents in the course of their employment, under the application of the rule respondeat superior, had mistakenly decided that such decisions were not controlling because that principle had no application when the servants or agents of a municipality represented it in the discharge of duties which were governmental or public in character, as contradistinguished from mere municipal duties,-a ruling from which it was deduced that, in the former situation, a wrong suffered by an individual, however grievous, was not susceptible of redress, because the wrongdoer, the municipality, acting through its agents, was beyond the reach of courts of justice. Besides, it was declared that although the court proceeded upon the assumption that the doctrine which [243 U.S. 1, 4] it announced was not in conflict with the previous decisions of this court, that assumption was obviously a mistaken one, since the case principally relied upon by the court to sustain the doctrine which was applied had in express terms declared that the principle announced was in conflict with a previous decision of this court, which decision was wrong and would therefore not be applied. The existence of the ground thus stated in the petition for the writ was not challenged in the opposition filed by the respondent, although the correctness of the legal propositions relied upon and the significance of the previous decisions of this court were disputed.
As on the face of the opinion of the court below the reasoning apparently justified the inference that the situation was as stated in the petition for certiorari, the prayer for the writ was granted. When, however, we come to a close examination of the record on the submission of the case on its merits, we discover that the question upon which the certiorari was prayed under the circumstances previously stated does not arise on the record and is not open for consideration, and therefore (of course, we assume through inadvertence of counsel) the petition for certiorari was rested upon a wholly unsubstantial and nonexisting ground,- a conclusion which will be at once demonstrated by the statement which follows:
At the trial the court in express terms charged the jury that 'for a mere act of isolated negligence the municipality of the District of Columbia would not be responsible, no matter what the result of the isolated act of negligence was. The District in this action, if responsible at all, can only be responsible upon the theory that the death . . . . resulted from the maintenance of a nuisance, in the first place, and secondly, that the District of Columbia maintained a nuisance.' And this was followed in the charge by a definition of what in the law would constitute a nuisance. To this charge as to nonliability of the city for any act [243 U.S. 1, 5] of negligence whatever under the circumstances, unless there was a public nuisance, no exception whatever was taken by the plaintiff, the only exception on the subject being that reserved by the defendant to the charge that there would be a liability even in case of a public nuisance. The case, therefore, on the appeal below (except as to subjects having no relation to the doctrine of municipal liability), involved only the question of liability in case of a public nuisance, and raised no question concerning the correctness of the ruling that the municipality was not liable for an act of individual negligence because the work which was being done when the accident occurred involved the discharge of a governmental as distinguished from a municipal duty. It is true that in the reasoning of its opinion the court below stated what it deemed to be the correct theory concerning the division of the functions of a municipality, in one of which it had power to inflict a positive wrong without redress, and made reference to state cases deemed to establish this doctrine and a decision of this court which it said was argued at bar to establish to the contrary. But this was only reasoning deemed by the court to throw light upon its conclusion on the subject which was before it; that is, whether there was liability on the part of a municipality for a public nuisance as an exception to the general rule of its nonliability for a wrong done when in the exercise of a governmental function, and as a prelude to the ground upon which the judgment rendered was rested; that is, that there was no evidence tending to support the conclusion that the facts constituted a public nuisance.
In this view it is plain that if we differed from the conclusion of the court below on the subject of the tendencies of the proof as to the nuisance, we would not be at liberty as an original question to consider and dispose of the alleged contention concerning the governmental function and the resulting nonliability for a wrong done by a [243 U.S. 1, 6] municipality, since that question, under the state of the record, was not before the lower court and would not be open for our consideration, as no exception concerning the ruling of the trial court on that subject was taken so as to preserve a review concerning it. As it follows that the certiorari was improvidently granted as the result of a misconception of the parties as to the state of the record and the questions open, it follows that the case comes directly within the rule announced in Furness, W. & Co. v. Yang-Tsze Ins. Asso. 242 U.S. 430 , 61 L. ed. 409, 37 Sup. Ct. Rep. 141, and our duty is to dismiss the certiorari, thus leaving the judgment of the court below unaffected by the previous order granting the writ.