sessions of the peace. A town lock-up is maintained and regulated by the council. D. C. 1908 v. CORPORA TION OF PRESCOTT. On December 5th, 1887, the defendants, by by-law, enacted NETTLETON as follows: "(1) The lock-up in the town of Prescott, consisting of the cells in the basement of the building known as the town hall, shall continue to be, and is hereby established as, the lockup of the said town. (2) The said lock-up shall be in the charge and under the control of the chief constable of the town of Prescott." On April 17th, 1899, a resolution was passed by the council whereby Robert J. Lee was "appointed the caretaker of town hall and markets, to fill the same duties performed by Mr. H. Stephenson." On April 18th, 1900, James Mooney was appointed chief of police for the town. Now, if the negligence alleged in this case were the negligence of Mooney, I would at once accede to the contention that the defendants were not liable: McCleave v. City of Moncton, 32 S.C.R. 106; but the whole case proceeds upon the negligence being that of Lee, and not of Mooney. It is true the by-law placed Mooney in charge of the lock-up, but it is equally clear, upon the evidence, that Mooney had nothing to do with its heating; that was, and had all along been, a part of the duties of Lee, not as a constable, but as the caretaker of the municipal building. Mooney had nothing to do with the heating, and had no means of controlling it. The stove in the hallway, the mayor says, was not intended for use when the steam heating was in operation. In his time (Lee was his successor, and was appointed to fill the same duties he had performed) this stove was never used. The steam heating plant was ample, and by it, he says, the temperature could be raised to 100 in the cells. The steam is constantly on, day and night, furnace continually going from fall until spring, and the fire kept up all the time. The mayor says that when he was caretaker it was never any part of the duties of the chief of police to attend the furnace; it was solely the duty of the caretaker, and that it is still so. Lee is also a constable, but he admits his work and duties connected with caretaker of the building, including attending the furnace, form no part of his duties as constable. All this was kept clearly in mind at the trial. The jury found 36-VOL. XVI. O.L.R. Mabee, J. D. C. 1908 NETTLETON V. CORPORA TION OF PRESCOTT. Mabee, J. that Lee, in managing the heating of the cell, was acting as a servant of the defendants; and upon this point the learned Chief Justice charged them as follows: "Lee was in general charge of the whole system, including the branch into the cell. Was he, as such manager of the heating, acting as a servant of the defendants? Was he obliged to take orders from them? Was he obliged to maintain the heating and appliances, etc., in conformity with the instructions from the defendants, or was he free to treat that cell as in his judgment he saw fit, without any interference from the defendants? If they had nothing whatever to say about the heating of that cell, then you would say that Lee was attending to the heating in his character as constable, as a police officer having another duty as well. If, on the other hand, he was entrusted by the town with the general management of this heating system, and had to conduct the heating of the cell and all parts of the building on the same principle, subject to the control and the orders entailed on him from the municipality, from time to time, so that he could be held responsible to them for the manner in which he did the heating, then he would be performing that part of the work as a servant of the corporation." It is apparent from perusing the evidence that the plaintiff was not contending that the defendants were liable for something that the chief of police had or had not done, but was attempting to fasten liability upon the defendants by reason of the negligence of their servant in not properly attending to the furnace upon the night in question. The jury find the plaintiff's health was injured because of their negligence in not looking after the heating of the lock-up from 12 o'clock on Saturday night until 12 noon on Sunday. Lee was in no way an independent public officer, nor one upon whom any duty devolved by law, but, as found by the jury, and really as to which there was no conflict, a servant of the defendants, with duties specified by them which he was bound to perform. Why, then, are the defendants not liable, on the maxim respondeat superior, for the neglect of Lee? A municipality has been held not to be liable for the acts of an engineer appointed under the provisions of the Ditches and Watercourses Act: Seymore v. The Township of Maidstone (1897), D. C. 1908 v. 24 A.R. 370; nor for the acts of a medical health officer: Forsyth v. Canniff and the City of Toronto, 20 O.R. 478; but in these cases, and many others of a like character, the reasons given for exempt- NETTLETON ing the municipality from liability are that the duties of the officers are defined by statute, and, once appointed, they become officials clothed with the authority bestowed upon them by the Acts for the furtherance of which they have been so appointed. Late English cases, I think, convey the same principles. In Stanbury v. Exeter Corporation, [1905] 2 K.B. 838, the fact was found that the relation of master and servant did not exist quâ the acts complained of, inasmuch as the Board of Agriculture had ordered that the local authorities should execute and enforce the Act. In Tozeland v. The Guardians of West Ham Union, [1905] 1 K.B. 920, the inquiry turned upon the proper interpretation of the PoorLaw Acts, and of the rights of a person coming in as a pauper and placing himself under the provisions of the statutes. He was sworn in The American cases cited all deal with the police feature, and, to my mind, that is not an element in this case. It makes no difference that Lee happened to be a constable. about the same time he was appointed caretaker, and, I presume, because he was caretaker. If the defendants had placed and left the lock-up in charge of the chief of police, and had not otherwise interfered in its management by the appointment of a servant of their own to attend to it, the position might have been different. In Eddy v. Village of Ellicottville, 35 N.Y. App. Div. 256, it was held that a village, in the maintenance and care of the village jail, acts in a governmental and not in its corporate capacity; and was not liable where a prisoner, while confined in an unheated room, the windows of which were broken, contracted a severe cold, terminating in pneumonia. The converse of this was held by the Supreme Court of North Carolina in Lewis v. City of Raleigh (1877), 77 N.C. 229; also in Shields v. Town of Durham (1895), 116 N.C. 394. In Edwards v. Town of Pocahontas, 47 Fed. 268, it was held that a municipality, which having power to maintain a jail, although not required so to do, undertakes to exercise the power, will be liable for the negligent exercise of it in keeping the jail in an unhealthy and filthy condition, whereby the health of a prisoner is injured. In Eddy v. Village of Ellicottville, the Court says CORPORA TION OF PRESCOTT. Mabee J. D. C. 1908 V. CORPORA- Mabee, J. there is much conflict of authority in the decisions of other States bearing upon this question. In the case last cited, it was said NETTLETON that a municipality, though a political division of the State, possesses two separate and distinct powers, one of which may be termed governmental or public, and the other private or corporate; that in the exercise of the former the municipality is invested with the quality of sovereignty; while in the exercise of the latter it occupies the same relation to the individual that any other corporate body does, and that if the duty of maintaining a village lock-up falls within its corporate duties, then it is liable in a civil action. Whether the distinction referred to between the so-called sovereign powers and the corporate powers of the local municipality has any existence under our system of municipal institutions it is not needful to consider, because, as I view the facts of this case and the jury's findings thereon, it is as clear as can be that the town was, in the maintenance of this lock-up, exercising corporate powers. The by-law sets apart a certain part of the basement of the municipal building to be used as a lock-up. There is one furnace used to heat all parts of the building. There is in it a town hall, and offices for the officers of the corporation. Part of the premises is rented to a bank, and one caretaker (Lee) superintends the whole building. Steam from the furnace passes through the pipes and coils of the whole building, including the lock-up. This latter was established with the intention that it should be used, the corporation undertook to maintain it, and, I think, thereupon there arose a duty upon the corporation to so maintain that the health of those that might be confined therein should not be endangered. In Mersey Docks Trustees v. Gibbs (1866), L.R. 1 H.L. 93, at p. 110, it is said: "In the absence of something to shew a contrary intention, the legislature intends that the body, the enactor of the statute, shall have the same duties, and that its funds shall be rendered subject to the same liabilities, as the general law would impose on a private person doing the same things." This statement of the law is not confined to cases where the local body is carrying on a work for advantage or profit, but extends to cases where the work is for the public benefit without any profit accruing therefrom. The corporation is not bound to establish a lock-up, and possibly not to maintain it, after having established D. C. 1908 it, but, having undertaken this duty, I am of opinion that the law then imposes upon it the obligation of exercising reasonable care in seeing that inmates do not suffer as the evidence shews NETTLETON this plaintiff did: Hesketh v. City of Toronto, 25 A.R. 449. Cases like McCleave v. Moncton (ante) afford no assistance, as the complaint is not that a police officer was negligent. I agree that upon the authority of Crown Bank of Canada v. Brash, 9 O.W.R. 789, the answer to question 6(a) can be discarded. The defendants' appeal should be dismissed with costs, and judgment entered for the plaintiff for $250 damages and costs throughout. v. CORPORA TION OF PRESCOTT. Mabee, J. 37-VOL. XVI. O.L.R. A. H. F. L. |