City of Hattiesburg v. Geigor , 118 Miss. 676 ( 1918 )

Sykes, J.,

delivered the opinion of the court.

The appellee, L. B. G-eigor, plaintiff in the circuit court, recovered judgment against the city of Hattiesburg for damages for personal injuries sustained by appellee alleged in the declaration to have been caused by the negligence of the city, from which .judgment this appeal is prosecuted.

The city of Hattiesburg maintains and operates a fire department within its limits. It has in its employ a chief of this department, who has supervision and control of the members of the crew employed therein. There are maintained three separate fire stations by the city, and the appellee was a captain of one of its stations. Owing to certain repairs which were being made, the fire engine and horses of the station of which the appellee was captain were being temporarily housed under a shed near the city hall. It was the duty of the appellee to look after his engine and horses and to drive them from the temporary shed to their regular quarters whenever necessary. Appellee, while driving his engine from under this shed, was struck on the head and severely injured by a projecting piece of lumber nailed from the ceiling and projecting over about the center of the opening of the doors. There was not sufficient room for the appellee to drive from under this shed, when seated on his engine, because of the projection of this piece of lumber. It is claimed that the chief of the fire department was negligent in keeping the engine in this shed and in ordering appellee to drive his engine therefrom. The gravamen of the declaration is the negligence of the chief of the fire department. A demurrer, to the declaration was filed by the defendant in the lower court and overruled. The question of negligence was submitted to the jury, and the jury returned a verdict in favor of the plaintiff.

It is the contention of the appellant that the city in maintaining, and operating its fire department was performing governmental functions or duties for which it is not responsible in damages for its negligence or that of its employees. This contention is well taken, The great weight of authority in this country is that a municipality is not liable for the commission of a tort in connection with its governmental functions or duties in the absence of statutory enactment. The line of demarcation between governmental functions or duties, in the performance of which a municipality is not liable, and the exercise of other corporate duties for which it is, is often difficult to determine.

“"What are governmental powers and duties, and what are corporate duties, is not subject to precise definition further than to say this: The powers and duties of municipal corporations are to twofold character ; the one public as regards the state at. large, in so far as they are its agents in government; the other private in so far as they provide the local necessities and conveniences for their own citizens. A municipal corporation ‘possesses two kinds of powers; one,governmental and public, and to the extent they are held and exercised is clothed with sovereignty; the other private, and to the extent they are held and exercised is a legal individual. The former are given and used for public purposes; the latter for private purposes. "While in the exercise of the former the corporation is a municipal government, and while in the exercise of the latter is a corporate legal individual.’

“There are some duties the nature of which as governmental is too well settled to be disputed, such as the establishment and maintenance of schools, hospitals, poorhouses, fire departments, police departments, jails,' workhouses, and police stations, and the like. In fact, duties connected with the preservation of the peace or health, or the prevention of the destruction of property by fire are all governmental duties, without question, and hence there is no municipal liability for torts in connection therewith, or at least not unless under peculiar circumstances.” 9 McQuillin, Municipal Corporations, pp. 5404-5407. See, also, section 2643, same authority.

“The power to organize and regulate a fire department and otherwise provide for the prevention of and guarding against damage by fire is generally held to he a legislative or judicial one, or a governmental as distinguished from a mere corporate one, and the failure of the corporate authorities to exercise the power to the full extent necessary to protect the citizens from such damage does not render the city liable to an action therefor.” 28 Cyc., p. 1303.

“398. Injury by Acts of Firemen or Defective Apparatus. — As the extinguishment of fires is a governmental function, the firemen áre not the servants or agents of the city or town by which they are employed, so as to render it civilly liable for their misconduct or negligence.' Thus it has been held that a city or town is not liable for injuries to a traveler on the highway who is run down by the negligent driving of fire apparatus, or who is injured by obstructions or other dangers negligently placed in a highway by members of the fire department, or to a citizen who is injured by the defective condition of a fire engine house, or to a fireman or other employee of the fire department who is injured by defective apparatus.” 19 R. C. L. p. 1117.

In actions against municipalities by third parties for the negligence of its firemen, the municipality has been held not liable for the reason that in maintaining and operating a fire department the city was performing a governmental function. Cunningham v. City of Seattle, 42 Wash. 134, 84 Pac. 641, 4 L. R. A. (N. S.) 629, 7 Ann. Cas., p. 805. There is an exhaustive note in this volume of the Annotated Cases showing that the great weight of authority is in accord with this decision.

In the ease of Alexander v. City of Vicksburg, 68 Miss. 564, 10 So. 62, which was an action for damages against the city of Vicksburg for the alleged negligence of a fireman while driving his fire engine to a fire, the city was held not liable. The court rendered this opinion:

“It is held generally, if not universally, by the courts of this country, that in eases of the class to which this belongs, the municipality is not liable, as is abundantly shown by the citations of counsel on both sides, which see.”

The fact that the appellee was an employee of the city makes no difference. Neither does it make any difference that he was not at the time of his injury actually going to a fire. At the time of his injury he was engaged in one of his duties in looking after the horses and equipment of this department. It is essential to maintain and operate' this department, and these are governmental functions.

The case of Long v. City of Birmingham, 161 Ala. 427, 49 So. 881, 18 Ann. Cas. 507, was a suit by a fireman for the alleged negligence of the city and is very much in point. There is also an exhaustive note to this case which is reported in 18 Ann. Cas. 507.

In the establishment, maintenance, and operation of its fire department a municipality is in the performance of its governmental functions and is not responsible for the negligence of its employees in this department. The demurrer to the declaration should have been sustained. The peremptory instruction requested by appellant should also have been given.

The judgment of the lower court is reversed, and a judgment will be entered here in favor of the appellant.

Reversed.