Lockwood v. Town of Weston. struction. Osborn v. New York & New Haven Railroad Co., ,40 Conn., 491. Also that, where the meaning of the legislature may be doubtful, this known policy of the state in this matter would incline the court to a construction that would avoid double taxation. Toll Bridge Co. v. Osborn, 35 Conn., 20. If then the property in question is in fact taxed directly or indirectly in the states where the express companies are located, it is by our law clearly exempted from taxation here. This is conceded by the defendant, but it claims that such property is to be taxed here, whether in fact taxed elsewhere or not, unless it is made to appear to the satisfaction of the assessors that it is so taxed elsewhere; and that, as no evidence was offered upon that point, the assessors were justified in keeping it in the list. We think this claim is not tenable. The legislature intended to exempt from taxation in this state, with certain specified exceptions, personal property owned by residents. of this state, if such property was rightfully taxable in another state, and was in fact taxed there. This was done in full view of the fact that it is now or is rapidly becoming the settled policy of all or most of the states to tax either directly or indirectly the shares of their domestic corporations, whether owned by residents or non-residents. Our own state does this, and also claims the right to tax shares in foreign corporations held by its own inhabitants. This latter right however it does not at present exercise, except in cases where the shares are not taxed elsewhere. Such instances must, from the nature of the case, be exceptional and few, while the cases where the shares are exempt will ordinarily be quite numerous. The fair presumption in any given case is, that such shares are in fact taxed elsewhere unless the contrary clearly appears, and the legislature undoubtedly acted upon this presumption. We think the legislature intended to have shares of stock in foreign corporations held by owners resident here, put in the list and taxed only in the exceptional cases where they are not in fact taxed elsewhere, and that such property Lockwood v. Town of Weston. can be put in the list and taxed only when it appears to the trier, whether such trier be assessor, board of relief, or Superior Court, that it is not taxed elsewhere. This construction fairly and effectually carries out the legislative intent with less labor and annoyance to all concerned than any other. The construction contended for by the defendant requires us to hold in effect that it is the duty of every resident owner of stock in a foreign corporation, or of other personal property, rightfully taxed and in fact taxed in another state, to put it into his list in the first instance, and then to have it taken out on proof that it is taxed elsewhere. This would undoubtedly involve a vast amount of unnecessary and useless labor and annoyance to the taxpayers and the assessors, without any compensating advantage, and we cannot believe that the legislature intended any such result. The practice throughout the state, so far as we are cognizant of it, has been in accordance with the construction here put upon this statute. In the case at bar it appears from the record that neither party, before either the assessors, the board of relief, or the Superior Court, attempted to show that the property in question was or was not taxed in the states where said express companies are located, nor does any evidence of this fact appear to have been given before said tribunals. Upon the facts found the fair presumption, we think, is that such shares are so taxed elsewhere, and consequently are exempt under our law unless it is made to appear that they were not so taxed. As this was not done in this case, we advise the Superior Court to render judgment for the plaintiff. In this opinion the other judges concurred; except LOOMIS, J., who concurred only in the result. Geer v. Darrow. CHARLOTTE M. GEER AND HUSBAND vs. ALLEN I. DARROW. New London Co., Oct. T., 1891. ANDREWS, C. J., CARPENTER, SEYMOUR, TORRANCE and FENN, Js. The defendant was employed by a city to build a retaining wall for the purpose of widening the traveled part of a street. He was to be paid by the day for his work and that of his men, who were hired and paid by him and were wholly under his direction and control. The work required the use of a heavy derrick, supported by four guy-ropes, one of which crossed the street at nearly right angles, but was so placed as not to obstruct travel. In lifting heavy stones the guy-rope over the street, unless supported by a prop, would slacken and drop so as to interfere with travel for a few moments, and when the stone was dropped in its place the rebound of the derrick would tighten the rope with considerable force. It thus caught the top of a phaeton in which the plaintiff was riding, and overturned it and injured her, she having been guilty of no want of care. The defendant was not personally present at the time of the accident. Held 1. That the defendant and the workmen on the derrick sustained to each other the relation of master and servants, and that the workmen were not the servants of the city. 2. That the fact that the defendant was not personally present did not affect the case, he being liable for the negligence of his servants. 3. That the failure to have the guy-ropes supported by a prop, which was essential to the safety of travel on the street, was personal negligence on the part of the defendant in conducting the work. Argued October 20th-decided November 16th, 1891. ACTION for an injury to the plaintiff through the negli gence of the defendant; brought to the Superior Court in New London County, and tried to the court, on a general denial, before Robinson, J. Facts found and judgment for the plaintiff and appeal by the defendant. The case is fully stated in the opinion. S. Lucas and C. W. Butler, for the appellant. 1. So far as the facts detailed in the finding go to show negligence, the finding places it elsewhere than upon the defendant. He had no personal share in the transaction, Geer v. Darrow. for it is found that he was not present. The facts show clearly that the apparatus in use about the derrick at that time was of a proper and safe character, and that if it had been properly handled by the workman in charge of the tailrope the accident could not have happened. Unless imputable to the defendant under some proper application of the rule respondeat superior, the burden of that negligence cannot be transferred to this defendant by any artificial and arbitrary claim of constructive liability against him. 2. The defendant is not responsible under the rule respondeat superior. The injury was sustained by the plaintiff, Mrs. Geer, at a point in one of the highways of the city of New London where repairs of that highway were in progress. The plaintiff is complaining, not of the condition of that highway as then "defective" in any respect, but only of negligent conduct of persons engaged in the performance of work. The construction and repair of public highways is strictly a governmental duty. Jewett v. New Haven, 38 Conn., 379, 388; Burritt v. New Haven, 42 id., 197. The state has imposed that duty upon the several towns as its agents. Gen. Statutes, sec. 2666. By the charters of the several cities in the state, that duty, as to the highways within their limits, has been transferred to the city corporations. Beardsley v. City of Hartford, 50 Conn., 529. It has been so assigned to the city of New London, which by the express terms of its charter is required “to make and repair all public streets, highways, roads and bridges within the limits of said city." 3 Special Acts, 432. The city cannot divest itself of that duty, nor can it escape or diminish its obligations and responsibilities under it, either by contract or ordinance, unless it shall be authorized by statute so to do. Deering on Negligence, § 10, and cases there cited; Watson v. Tripp, 11 R. Isl., 98. No such provision exists as yet in the law of Connecticut. If the defendant had contracted to do this work, (which the finding shows was not the fact,) even with express agreement on his part to assume all the city's obligations and responsibilities in it, such. agreement would be insufficient to transfer to him the city's Geer v. Darrow. duty or responsibility. Brooks v. Somerville, 106 Mass., 271. The city of New London, then, was the responsible superior, at every stage of this work. This is none the less true because of the fact that the governmental character of the duty involved may afford the city a shield against liability to the plaintiff. The special immunity granted to the superior and principal in this class of cases may leave this plaintiff to look for damages solely to the servant actually engaged in the work,-the workman employed at the tailrope. And that may, indeed, shut the door on the chance of realizing any of the money compensation here claimed. But this fact is not efficacious to create a liability against this defendant, who was absent from the scene of the accident, and who is neither the actual wrong-doer nor the responsible superior. The defendant owed no duty to anticipate the negligence of the workman operating the derrick. Pollock on Torts, 387. men. 3. But assuming that the city had the power to make such a contract relative to this work as would relieve it of the relation of master and servant between it and the workman employed, did it attempt to make any such contract? The portion of the finding that bears on this point is as follows: "The defendant undertook to do this piece of work for the city, and his remuneration therefor was agreed to be measured by the days' and hours' work of himself and his The defendant was not employed by the city as an overseer, or as a superior workman, to superintend the operations of the inferior servants of the city; the defendant hired and paid the workmen who did the work such wages weekly as he and they agreed upon. Said workmen were fully under his control and direction, and without control or interference in any way of the city or its officers, and were the men who constituted his regular gang of workmen in jobs and contracts undertaken by him. The defendant selected his own machinery, tools and appliances, and commenced upon and prosecuted the work without any other direction or control, on the part of the city or any of its agents, except at the beginning of the work, when the line, |
