It is the duty of this Court to dismiss a certiorari upon
discovering that the question which induced the issuance of the
writ does not arise on the record.
Furness, Withy & Co. v.
Yang-Tsze Insurance Association, 242 U.
S. 430.
Petitioner's intestate was killed by an explosion of gas while
making repairs in a school building of the District of Columbia.
Damages were recovered in the Supreme Court of the District, and
the judgment was reversed by the Court of Appeals. This Court
issued a certiorari upon the assumption (induced by a misconception
of counsel) that the decision, in possible conflict with decisions
of this Court, proceeded on the theory that the municipality could
not be held for positive torts committed by its agents while
discharging its public or governmental duties. Examination of the
record proving that no exception was taken by plaintiff to the
rulings of the trial court in this regard, and that the decision of
the appellate court
Page 243 U. S. 2
turned on its conclusion that the evidence was insufficient to
establish a nuisance as the cause of the accident,
held,
that the certiorari must be dismissed.
Writ of certiorari to review 41 App.D.C. 463 dismissed.
The case is stated in the opinion.
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 condition,
Page 243 U. S. 3
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
Page 243 U. S. 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
Page 243 U. S. 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
Page 243 U. S. 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, Withy
& Co. v. Yang-Tsze Insurance Association, 242 U.
S. 430, and our duty is to dismiss the certiorari, thus
leaving the judgment of the court below unaffected by the previous
order granting the writ.
Dismissed.