Peterson v. . Wilmington

DOUGLAS, J., dissenting. The plaintiff sustained injuries to his person while in the service of the fire department of the defendant, the city of Wilmington, and brought this action for the recovery of damages. The charge on which the recovery is sought is that the defendant permitted, knowingly, a hose-reel belonging to its fire department to be and remain in an unsafe and dangerous condition, and that on a sudden emergency, the breaking out of a fire, the chief of the fire department ordered the plaintiff to mount the reel and repair to the scene of the fire, and the plaintiff, in obeying this order, was hurt by a fall caused by the collapse of the reel.

After the plaintiff had introduced his evidence, the defendant demurredore tenus, and the court sustained the demurrer.

The defendant is empowered by its charter, in order to more effectually provide against damage and danger from fire, to establish and regulate a fire department, and the question to be determined is this: Are the powers and duties enjoined upon that department and upon the defendant as to its formation and regulation for the extinguishment of fires, public and governmental, or are they merely private and municipal? If they are of the former character — for the general good — the defendant is not liable for either its own tort or negligence or the negligence or tort of its officers or agents, unless there is some constitutional or legislative enactment which subjects it to liability therefor; and it is not contended by the plaintiff that there is any such enactment applicable to this case. If, however, the defendant was acting for its own benefit, and purely under its corporate or municipal powers, then, in case of negligence on its part, liability would ensue. Moffit v. Asheville, 103 N.C. 237, 14 Am. St., 810; Pritchard v. Commissioners, 126 N.C. 908, 78 Am. St., 679.

We have no decided case in our reports upon the particular (78) question whether or not the laws governing the establishment and regulation of fire departments under the charter privileges and rights of our cities and towns, and the acts of those charged with the performance of those rights and duties, are legislative and governmental or merely corporate and municipal. But in our investigation we have found numerous decisions on the subject in the courts of other States. The great weight of authority is to the effect that such duties and powers are legislative and governmental. Some of them are the following: Jewett v. New Haven,38 Conn. 368, 9 Am. Rep., 382; Fisher v. Boston, 104 Mass. 87, 6 Am. Rep., 196; Wild v. Patterson, 47 N.J. Law, 406; Mayor v. Workman, 67 Fed., 347;Howard v. San Francisco, 51 Cal. 52. In fact, we found none to the contrary. Upon examination of the one alleged to be to that effect (LaFayette v. Allen, 81 Ind. 166, cited by plaintiff's counsel), it is found to be irrelevant. The engine, there, was a fire engine, but at the time of the injury of the plaintiff by its explosion it was not being used in the extinguishment of fire, but for the purpose of pumping water for ordinary city purposes. It is to be remarked, however, that nearly all the cases examined by us were actions brought by persons other than employees of the fire department. But that does not alter the principle. If the powers and duties be legislative and governmental, the city governments are neither liable for their own negligence nor for the negligence of their agents or officers to any one, stranger or employee.

After mature reflection, we think his Honor was correct in his ruling.

No error.