Stouffer v. Morrison

Dissenting Opinion by

Mr. Justice Musmanno:

On February 14, 1959, three members of the police force of the Borough of Shippensburg assaulted, without provocation, the plaintiff James F. Stouffer, striking, punching and kicking him, throwing him to the ground and otherwise manhandling him. These same three policemen had beaten up other unoffending persons prior to the attack on Stouffer. The police authorities and borough officials were aware of the violent proclivities of these three officers, but did not dismiss them or do anything to correct their propensity for violence.

James Stouffer brought an action in trespass against the three men and the borough. The borough filed preliminary objections in the nature of a demurrer, which the court below sustained. The plaintiff appealed. This Court affirms the demurrer and accepts the opinion of the lower court as its own. I will, therefore, refer to that opinion as the Majority Opinion.

*504 A reading of the Majority Opinion is its own best answer. It begins by citing Boorse v. Springfield Twp., 377 Pa. 109 , which encompasses the narrative of one of the most senseless and calloused acts that could be perpetrated by men supposedly representing the law. A valuable race horse by the name of AlPs Over had, while enjoying some unexpected but refreshing liberty, run into a culvert from which it could not extricate itself. Although imprisoned, the horse was not injured in any way. Two police officers came upon the unfortunate animal and, instead of trying to liberate it or even to notify its owner of what happened, they whipped out their revolvers and fired ten shots into the horse’s head. For All’s Over it was now indeed all over. His owner sued the two municipalities which had hired the police officers but this Court refused recovery, not because the policemen’s actions could be justified but because, as it took pains to point out, more than a century ago “it was held in Fox v. The Northern Liberties, 3 W. & S. 103 , that the defendant in that case, an unincorporated distinct, was not liable for a trespass committed by its Superintendent of Police, who was alleged to have illegally seized a horse under a false pretense that its owner was violating the ordinance of the district.”

Thus, on the basis of a previous act of injustice by the government, this Court affirmed the injustice done the owner of AlPs Over. If an American visiting in Russia had seen two Communist policemen draw guns and needlessly slay a healthy horse, and then learned that the Russian government had refused compensation to the owner of the horse, the American would voice indignant astonishment over the manifestation of such unbridled tyranny. Why should a similar act in America be enveloped in impeccable legality?

*505 In further attempted support of the lower Court’s action in the case at bar, the Majority cites still another horse case. (Elliott v. Phila., 75 Pa. 347 ). It tells us how in 1874 a policeman illegally seized a horse and so negligently handled it that it ran away and was killed. The owner sued for the value of the horse but the Court held that the municipality would not be liable for the negligence of its police officer. It based its decision on the precedent of what had been done in the Fox case where the superintendent had illegally seized the horse in that case under false pretense. If it was all right to commit a flagrant act of governmental abuse with the horse in the Fox case, it was equally all right to repeat the illegal performance in the Elliott case.

Thus, horse by horse, the fiction of governmental immunity for the tortious acts of its agents continues to raise its cacophonous clatter down the highway of law and justice.

Is it not about that time that these horse cases be retired to the Pasture of Innocuous Desuetude?

The principal theme of the Majority Opinion is that the plaintiff cannot recover because of the borough’s governmental immunity from responsibility for the tortious acts of its agents. This theory is based on the supposition that since the king could do no wrong, our government, following in the wake of monarchial immunity, can also do no wrong.

On this mendacious doctrine rests the assumption that even a republican government may do no wrong and therefore may not be sued. But it is not true that government in America may not be sued. The government may be sued for breach of contract, for failure to properly maintain highways, for negligence in the manner of running its public parks, and for many other derelictions. Why may it not be sued for negligence *506 in hiring men obviously unsuited for police work or retaining them after it has been irrefutably established that they are a harm rather than a protection to the public?

The law on the responsibility of municipalities for the torts of its agents is in a hopeless tangle of inconsistency, and the time has come for this court to bravely face the issue and declare that a municipal corporation, like any other corporation, is to be held liable for the misdeeds of its agents and employees. Some of the distinctions made in the reported cases as to liability and non-liability approach the preposterous. For instance, in Honaman v. Philadelphia, 322 Pa. 535 , the plaintiff was hit by a baseball in Fairmount Park maintained by the City of Philadelphia. He sued and recovered from the City of Philadelphia. But in Scibilia v. Philadelphia, 279 Pa. 549 , the plaintiff, who was run over by a city truck hauling ashes to a refuse dump, was not allowed to recover because this Court said that the “gathering and disposal of refuse is primarily a health measure.” But what of the health of Scibilia?

What is the theory which denies Scibilia recovery because he was run down by a garbage-carrying truck and allows recovery to Hill in the case of Hill v. Allentown Housing Authority, 373 Pa. 92 , where the plaintiff was injured by falling into the ashes of an incinerator plant which was burning the same kind of refuse being carried in the Scibilia case? Why is it that one hit by a baseball may recover from the City and one hit by a truck may not?

The Majority holds in the case at bar that the municipality of Shippensburg is not responsible for the actions of its police officers in striking the plaintiff with their fists, feet and maces, because they were supposedly performing a governmental function, but if *507 they had committed a similar assault while they were in an automobile the municipality would have been liable. Does the difference in liability therefore depend on whether the policeman is on foot or ahorse? Is an automobile-riding policeman a lesser governmental agent than one on foot? We, of course, know that The Vehicle Code provides for municipal responsibility in automobile cases, but the principle involved is still the same. *

A dissent on the subject of governmental immunity in tort cases lends itself to extended treatment. I will forego launching into that extended treatment, but I wish to record that it is my belief, founded on appreciation of law, that the government, which should be the first to acknowledge error and make restitution for harm done its citizens, should not be exempt from rules which apply to everybody else, only because of fine-spun theorizing, academic argumentation and sophistic dialectics which have no place in the determination of what is fundamentally right and what is flagrantly wrong.

Roadman v. Bellone, 379 Pa. 483 .