Highway Trailer Co. v. Janesville Electric Co., 178 Wis. 340

Highway Trailer Co. v. Janesville Electric Co.

178 Wis. 340 | Wis. | 1922

Eschweiler, J.

The defendant in supporting the order sustaining the demurrer urges as follows:

.First. That the complaint must be construed as disclosing a situation wherein the defendant has but breached its contract with the city of Edgerton for the furnishing of electrio current for the waterworks of said city.

Second. That in the maintaining and operating of such waterworks system, so far at least as to its use in extinguishing fires, the city of Edgerton was only performing a governmental function and for default therein such city incurs no liability whatsoever.

Third. That inasmuch as defendant's connection with such services is based upon its contract with the city, the defendant also cannot be held liable though engaged in furnishing but part of the necessary service for the purpose of extinguishing fires, just as water companies conducting the entire waterworks system under contract with the city have been held not liable for failure to keep up, according to contract, sufficient pressure in the water mains.

No question can well be raised but that under the established doctrine in this state as well as almost universally elsewhere, under no construction to be given to the facts alleged in the complaint could there be a liability established as against the city of Edgerton for the loss occurring to plaintiff by the interruption in the service being rendered by the city in extinguishing the fire in plaintiff’s building.

In Hayes v. Oshkosh, 33 Wis. 314, where sparks from the city’s fire engines, then being carelessly operated in the putting out of a fire in a neighboring barn, set plaintiff’s *345store afire and damaged his goods, it was held that, the city being then in the performance of a public service in which/ it has no particular interest and from which it derives no special benefit, its firemen were acting, not as Servants or agents, but as public officers, and that there was no liability as against the municipality in the absence of a statute to that effect.

The same doctrine was upheld in Manske v. Milwaukee, 123 Wis. 172, 101 N. W. 377, where plaintiff was injured by the negligence of an employee of the fire department in carelessly moving'a pair of scales used in weighing coal' for the city fire department. Again in Higgins v. Superior, 134 Wis. 264, 114 N. W. 490, where the injury occurred through the negligence of a known incompetent driver for the city fire department. Again in Engel v. Milwaukee, 158 Wis. 480, 149 N. W. 141, where the city was held not liable for an injury caused by the negligence of the driver of the automobile used in the department of the fire and police alarm system.

That such view is in accord with the overwhelming weight of authority in this country is clearly indicated from the cases listed in 9 A. L. R. 143. But one state in recent years has held to the contrary, and by a decision in 1919 the Ohio supreme court expressly overruled its former decision in that regard and now holds that a municipal corporation can properly be held liable for injury to a pedestrian by the negligent driving of the city’s fire apparatus. Fowler v. Cleveland, 100 Ohio St. 158, 126 N. E. 72, 9 A. L. R. 131. The same ruling has been had as to the operation of a fire tug, but that by reason of maritime law. Workman v. New York City, 179 U. S. 552, 570, 21 Sup. Ct. 212, 45 Lawy. Ed. 314.

There is a manifest distinction between services rendered by a city in extinguishing fires for which, as is well known, no compensation is received by the city and a situation arising from negligence in the operation or maintenance of *346a waterworks system by the city where water is furnished to private consumers upon contract and for compensation. When engaged in the performance of services in the conduct of a business from which it is receiving particular and specific financial return, the municipality is held accountable for the default or negligence of its employees as though it were a private corporation. State Journal P. Co. v. Madison, 148 Wis. 396, 403, 134 N. W. 909; Piper v. Madison, 140 Wis. 311, 314, 122 N. W. 730; Nemet v. Kenosha, 169 Wis. 379, 383, 172 N. W. 711. It was clearly referring only to its conducting the waterworks system as a revenue producer and not when within the limited purpose of furnishing fire protection that this court speaks of it as acting in a proprietary capacity in Eau Claire Dells Imp. Co. v. Eau Claire, 172 Wis. 240, 252, 179 N. W. 2.

The clear distinction between such' two services and the acting by the municipality in its proprietary capacity in the one and its exercise of governmental function in the other is pointed out in Piper v. Madison, supra, and in Chicago v. Selz, Schwab & Co. 202 Ill. 545, 67 N. E. 386, there cited.

Upon the third point above stated and as urged here by the defendant, it was early held in this state, has been steadily adhered to since, and in accord with the general line of authority elsewhere, that a private corporation under contract with the city to furnish the water supply to such city and its inhabitants is not liable any more than is the city for damages arising from any breach of its contract obligations to furnish sufficient pressure in the waiter mains for fire protection. The question was squarely presented and fully discussed in Britton v. Green Bay & Ft. H. W. W. Co. 81 Wis. 48, 51 N. W. 84, where the damages sought to be recovered occurred by reason of the failure of the waterworks company to comply with a provision of its franchise with the city expressly requiring it to furnish *347water both for public and private use and for the putting out of fires, and in that case the distinction between the two kinds of services was pointed out. Page 53. The question was again fully discussed and this court strongly urged to change the rule so announced in the Britton Case in the case of Krom v. Antigo Gas Co. 154 Wis. 528, 140 N. W. 41, 143 N. W. 163. Upon the first decision in the Krom Case it was held that there could be a liability under the treble-damage provisions of the public utility law, but upon rehearing that view was withdrawn and the court then agreed with the opinion expressed by Mr. Justice Timlin in his concurring opinion, in which is found a full discussion of this question. So the rule in the Britton Case was expressly reaffirmed and added weight given to it from the view the court then expressed (p. 544) as to the tremendous liabilities that would be now imposed upon such water companies which had assumed similar situations in evident reliance upon the rule announced in the Britton Case.

If, therefore, the complaint must receive the construction contended for by defendant, and there is much plausible support in the language used therein for such contention, then under the decisions above quoted there could be no escape from the conclusion that the complaint states no cause of action as against the defendant and the demurrer should have been, as it was, sustained.

The plaintiff, however, contends that the complaint is grounded in tort and sufficiently shows an intentional, unnecessary, and negligent interference by defendant with the electric current then being furnished to and used by the city of Edgerton in its then present service in attempting to put out the fire on plaintiff’s premises, and that for injuries proximately caused by such negligent present interference the defendant must be held liable as a tortfeasor, as much so as though it were an unquestioned interloper. And further, that the allegations in the complaint showing the contractual relationship between the city and the defendant *348^are but explanatory of the situation and not controlling as to the respective rights and liabilities of the parties here.

Under the rule binding us as to liberal constructions of pleadings, if two permissible constructions of a complaint are presented we are required to adopt that which will support a cause of action rather than another which would tend to show no legal ground for action. From the allegations of this complaint as summarized in the statement of facts we can see sufficient to support the conclusion that there is alleged not merely a breach of defendant’s contract with the city of Edgerton, but a breach of the obligation which the defendant, as well as all persons, owed to the plaintiff as well as to , all other residents of the ciliy to whom at any time the city of Edgerton might be in the immediate performance of its governmental function of fire protection, to not interfere with such gratuitous and voluntarily assumed function by the city, and that any breach of such implied dutjr so resting on defendant and all third persons by any intentional, unwarranted, or negligent interference with or caused interruption of such service may be considered a tort, and for the damages proximately caused thereby the person responsible for the same be held liable.

We consider, therefore, that the allegations tending to show defendant’s intentional, unnecessary interruption of and interference with the service being rendered to plaintiff by the city in extinguishing the fire brings this case squarely within the rule and doctrine stated in the case of Concordia F. Ins. Co. v. Simmons Co. 167 Wis. 541, 168 N. W. 199, where the defendant, while driving piles for. a building on its own premises, broke into the main water supply pipes of the city of Kenosha and interrupted its service in fire protection.

It follows, therefore, that it must be held that the complaint states a cause of action and the demurrer thereto should have been overruled.

By the Court. — Order reversed.