
    Frederick, Admx., v. The City of Columbus.
    
      Municipal corporation — Liability of for Damages — Not liable to one injured by negligence of its fire departments, when — Municipal corporation law.
    
    A municipal corporation is not, in the absence of any statutory provision, liable in damages to one injured by the negligent acts of its fire department, or any of its members ; nor is it liable for negligence in omitting to inform the members of its fire department of defects in the apparatus of the department, known to itself; nor for neglecting to instruct its fire department in the proper use and management of such apparatus.
    (Decided June 21, 1898.)
    Error to the Circuit Court of Franklin county.
    
      J. T Holmes; F. A. Davis and Gyrus Iluling, for plaintiff in error.
    On the part of the plaintiff in error, we contend for a line of demarkation between acts which are governmental in their character, as to which an honest discretion may be exercised, as to which honest differences of opinion may arise and as to which a decision is a matter of policy, the adoption, of which may or may not be to the best interests of the public, but which nevertheless embodies the honest best opinion of those persons adopting or rejecting the policy. And those acts of the municipal corporation, which, when a policy has been adopted in reference to a governmental function, such for instance as the establishing of a fire department, relate to the carrying out of that policy, the purchase and use of property to be used in the carrying out of such policies, and the placing in unskilled hands of a dangerous instrument to. be used in a crowded thoroughfare, where the city through its accredited representatives, knows of the dangerous character of the instrument, and the unskillfulness of its agents.
    In this respect it may be noticed that in later years courts have been veering around upon the question of non-responsibility of municipal corporations in the discharge of governmental duties, to the view we have herein expressed. And generally, the later cases will be found most fully to substantiate the claims of the plaintiff in error in this case. City of Toledo v. Cone, 41 Ohio St., 149; Robinson v. Greenville, 42 Ohio St., 625, refers to an unreported case, evidently on all fours with the one at bar. Newark v. Frye, decided by this court March 22, 1881, and unreported.
    No small degree of care and caution is necessary in applying to the case at bar the decision and dieta of the courts in other eases. Thus in Goddcvrd v. Inhabitants of Harpswell, 84 Me., 499; and in 30 Am. St. Rep., 373 copious notes are appended, and the general trend of the language of the author of the note is against the view here expressed by us, yet when the author comes to cases similar to the one at bar, and where the exercise of discretion on the part of the municipality has ceased, the language is quite different.
    Now, if the governmental powers of the municipality cannot afford a shield for it to destroy private rights of property, much less can it afford a shield under which it may endanger and destroy the lives of its citizens.
    Amongst all the cases cited by counsel for either side, the case at bar stands, in some respects, unique. It does not depend entirely upon the question as to whether the city is liable for negligent acts in providing apparatus for its fire department. Acting under a valid authority the city purchased a dangerous instrument, and placed it in unskilled hands, and allowed it to be erected on the principal thoroughfare of the city, and from this unskilled use of the dangerous instrument, for both of which the city is entirely responsible, death resulted. What a perversion of justice it would be, to hold that in such a case she who has lost everything through this wrongful act of the city can have no redress. On the reasoning of our Supreme Court in the cases cited, redress should not be denied her. Jones on Negligence of Municipal Corporations, sections 31, 34, 35, 139, 145, 148, 150, 160, 176, 758, 985, 986; Lafayette v. Allen, 81 Ind., 166; Newcombs. Boston Protection Department, 29 Am. &Eng. C. C., 641; 103 Ind., 413; Joliet v. Verley, 35 111., 58; Pollock on Torts, 51, 52; Mersey Docks Trustees v. Gibbs, L. R., I. H. L., 93; Olarissey v. Metropolitan Fire Dept. (N.Y.), 7 Abb. Pr., N. S., 352; Coots v. Detroit, 44 N. W., 17; Janey et al. v. City of Brooklyn, 120 N. Y., 164; Beach on Public Corporations, note to section 755; Bailey v. New York, 3 Hill, 541; Thayer v. Boston, 19 Pick., 51; Akron v.- Me Comb, 18 Ohio St., 229; Rhoades v. Cleveland, 10 Ohio, 159; MaxamüiconY. New York, 62 N.Y., 160; Smith v. Rochester, 76 N. Y., 506; Warden v. Bedford, 131 Mass., 23; Perkins v. Lcmrence, 136 Mass., 305; Waldron v. LLaveral, 10 N. E., 481; Mackey v. Vicksburg, 64 Miss., 777; CccrdingtonY. St. Louis, 89 Mo., 208; RotolandY. Kata., 49 Mich., 553; Hannon v. St. Louis County, 62 Mo., 313.
    Then, too, it should be noticed that in Columbus it is made the duty of the city to maintain and pay a fire department in the same sense it is made its duty to repair streets. Section 1692, Revised Statutes, provides for both. It has the power and the council by ordinance may provide for the enforcement of the same. Par. 18, to establish, etc., streets. * * * Par. 30, to organize, etc., afire department, erect buildings for same, purchase engines, etc.
    Many of the cases in the books hold the corporation not liable for negligence of its firemen, because they were not in the employ of the corporation — that is, were volunteer firemen of the old regime.
    Under our statutes the city firemen are as much employees of the city as any officer of the city. They are all, from the chief down, appointed, employed and dismissed by the city, paid by the city, and every movement controlled directly by an officer elected by the people, the mayor. Indeed it is no public duty that the firemen discharge as compared with the police power of the state. That is a power exercised to prevent and punish infractions of the state laws, of the public peace, and as much for the benefit of the wayfarer within our gates as for the benefit of our own citizens. The fire department is instituted for the purpose of protecting our own citizens against loss of property by fire. Mr. J. T. Holmes, in his reply brief, cites Hines sr. Loclvport, 50 N. Y., 236; TTrqibhartv. Ogdensburgh, 97 N. Y., 238; Seifert v. Brooklyn, 101 N. Y., 136; Thomas on Negligence, 935; Morrill on City Negligence, chapters 8 and 9; Moon v. Middletoion, 14 C. C., 498; Bentham’s Works, volume IV, page 315, Bowring’s Ed.; 1 E. R. C., 666, 667; Chicago v. Seben, 165 111., 371; S. C., 56 Am. St. Reps., 245 and notes•, France y. Ihe State, 57 Ohio St., 1.
    
      Sehoyn H. Owen, Director of Law; H. C. Irvine and Cha/rles J. Pretzman, for defendant in error.
    
      That a municipal corporation is not liable for the negligence or wrongful acts of its officers or agents, by which an injury is done, where the negligent or wrongful act was committed while the officer or agent was engaged in a duty pertinent to the exercise of the governmental functions of the corporation.
    The protection of the people of a city from destruction of their property by fire is a sovereign duty and function. The city is but asserting and exercising this sovereign power and function when she provides and uses the necessary appliances for the extinguishment of fire.
    Counsel for the plaintiff cite and quote, God dwrdv. Inhabitants of Harpswell (Maine), reported in 30 Am. St., something which they maintain favors their contention. We invite the attention of the court to this note. So much as counsel quote relates to the adoption of a plan of some public work, and does not advance the discussion of the question at bar. Mead v. Hew Haven, 40 Conn., 72; 16 Am. Rep., 14; Mendel v. Wheeling, 28 W. Va., 233; Wright v. Augusta, 78 Ga., 241; Wheeler v. Cincinnati, 19 Ohio St., 19; Black v. City of Columbia, 19 S. C., 412; Robinson v. Evansville, 87 Ind., 334; Nickerson v. Bridgeport Co., 46 Conn., 24; Brinkmeyer v. Evansville, 29 Ind., 187; Tainter v. Worcester, 123 Mass., 311; Heller v. Hedalia, 53 Mo., 159; Grant v. Erie, 69 Pa. St., 420; Foster v. Water Co., 3 Lea, 42.
    Nor by showing any negligent act on the part of an officer of the fire department resulting in loss, either by contributing to the destruction of property by fire, or the damage of the plaintiff in other respects. Hayes v. Oshkosh, 33 Wis., 314; Wilcox v. Chicago, 107111., 334; Wilds v. Pa>tt&rson, 
      47 N. J. L., 406; Burrill v. Augusta, 78 Me., 118; Grabe v. St. Paxil, 34 Minn., 402.
    Therefore he cannot recover on the ground that through the negligence of a person acting in the department, a collision occurred between a vehicle controlled by such person and the vehicle in which plaintiff was riding, or because plaintiff was negligently run over and thereby suffered personal injuries. Alexander v. Vicksburg, 68 Miss., 564; Hufford v. Hew Bedford, 16 Gray, 297; Jexmtt v. Hew Haven, 38 Conn., 368; Wilcox v. Chicago, 107 Tib, 334; Fisher v. Boston, 104 Mass., 87.
    Or by slipping and falling upon ice, resulting from water being permitted to escape from a hydrant. Welsh v. Rutland, 56 Vt., 228.
    Or by negligently maintaining a door in an engine house, so that it opened upon and struck pedestrian. Kies v. Erie, 135 Pa. St., 144.
    So municipal liability cannot be established by proof that the fire department, or some member thereof, needlessly or negligently caused the destruction of plaintiff’s property, whether such destruction resulted from the negligent management of some appliance or from a mistaken judgment in ordering the destruction of property to arrest an existing conflagration. Dunbar v. San Francisco, 1 Cab, 355; Field v. Des Moines, 39 Iowa, 575; Taylor v. Plymouth, 8 Met., 462; Hayes v. Oshkosh, 33 Wis., 314; White v. Charleston, 2 Hill (S. C.), 571; McDonald v. Red Wing, 13 Minn., 38, sections 2470, 1692.
    The power thus conferred is legislative and governmental and not merely ministerial, and hence a municipal corporation is not liable for damages resulting from failure to provide agencies for extinguishing fires, or negligence of officers of the fire department. Wheeler v. Cincinnati, 19 Ohio St., 19; Western College v. Cleveland, 12 Ohio St., 375; City of Toledo v. Cone, 41 Ohio St., 160; Mitchell v. The City of Rockland, 52 Me., 123; Eastman v. Meredith, 36 N. H., 284; City of Galveston v. Posnainsky, 62 Tex., 119; iTiiZ v. Acstow, 122 Mass., 344; French v. Boston, 129 Mass., 592; Olrnery. Wooster, 102 Mass., 499; Prey v. The Mayor, etc., 23 N. J., 394; Curran v. Boston, 151 Mass., 505; Bigelow v. Inhabitants of Randolph, 14 Gray, 54; Hyde, Admr., v. Jamaica, 27 Vt., 443; Richmond v. Long's Admr., 17 Gratton, 375.
    The prevention of destruction by fire by a municipal corporation is a wholly governmental duty, concerning which said corporations have no liability. Jones on Mun. Corp., sections 27 and 31; Dillon on Mun. Corp., sections 974 and 976; Cooley on Torts, 2d Ed., pages 739-740; Sherman & Redfield on Negligence, section 264; Wilde v. Patterson, 47 N. J. L., 406; Kimball v. Boston, 1 Allen, 417; New Orleans v. Crescent Fwe Ins. Co., 25 La. Ann., 390; Smithy. Rochester, 76 N. Y., 506; Ham v. City N. Y., 70 N. Y., 459; Woodbridge v. Mayor, etc., 49 Ham. Pr., 67; Fisher y. Boston, 104 Mass., 87; McKenna v. St. Louis, 6 Mo. App., 320; Edgerly v. Concord, 59 N. H., 79; 15 Am. & Eng. Ency. of Law, page 1145; Thompson v. Mayor, etc., N. Y, 52 N. Y. Superior Court, 426; Welsh v. The Village of Rutland, 56 Vt., 228; Hayes v. Oshkosh, 33 Wis., 314; Howard v. San Francisco, 51 Cal., 52; Wheeler v. Cincinnati, 19 Ohio St., 19; Thomas v. City of Findlay, 6 C. C., 241; s. c. 3 Cire. Dec., 435; Kinkead:s Code Pleading, section 859.
    Municipal corporations are of a dual character. Jones on Negligence by Mun. Corp., section 24; Lloyd v. The Mayor of Neio York, 55 Am. Dec., 247; 
      Hart v. City of Bridgeport, 13 Blatch. (U. S.), 289; Benton v. Trustees of Boston City Hospital, 140 Mass., 13; Bryant v. City of St. Paul, 33 Minn., 289; Deim v. Cincinnati, 25 Ohio St., 305; Finch v. Board of Education, 30 Ohio St., 37; Bobinsonv. Greenville, 42 Ohio St., 625; O’Mearav. Mayor, cic., <?/ _ZWic Tcr/t, 1 Daly 425; Lloyd v. 77¿<? Mayor of New York, 1 Selcl., 374; Marmet v. 77u? Aiaie, 45 Ohio St., 68.
   Minshall, J.

The city of Columbus having purchased a certain apparatus for the extinguishment of fires, called a ‘ ‘ fire tower, ’ ’ its fire department was engaged, on June 24, 1894, in a practice drill on one of its principal streets, when by the negligent management of the members of the department it fell and caused the death of the plaintiff’s husband. He was at the time sitting in his buggy near by and was without fault on his part in any way contributing bo the result. Whereupon his wife, having been appointed his administratrix, brought suit against the city to recover damages for thewrongfúl causing of his death. She charged negligence against the members of the department in managing the tower; also, that the tower was defective to the knowledge of the city, and that it was negligent in not communicating this fact to the members of its fire department ;and that the latter were inexperienced in the use of the tower, and that the city was negligent in not- having' properly instructed them in its management and use. The city demurred to the petition, the demurrer was sustained and the petition dismissed. On error, the judgment was affirmed by the circuit court.

The record presents the simple question whether a municipal corporation is liable in damages to one injured by the negligent acts of the members of its fire department engaged in the use of its apparatus whether in the extinguishment of fires or otherwise. The question has generally, if not universally, been answered in the negative.

The ground on which the non-liability of municipal corporations is placed in such cases, is that the power conferred on them to establish a department for the protection of the property of its citizens from fire, is of a public or governmental nature, and liability for negligence in its performance does not attach to the municipality unless imposed by statute. The non-liability of the city in such cases rests upon the same reasons as does that of the sovereign exercising like powers ; and are distinguished from those cases in which powers are conferred on cities for the improvement of their own territory and the property of their citizens. “It is obvious,’’says Gholson, J.,in Western College v. Cleveland, 12 Ohio St., 375, 377, “that there is a distinction between those powers delegated to municipal corporations to preserve the peace and protect person and property, whether to be exercised by legislation or the appointment of proper officers, and those powers and privileges which are to be exercised for the improvement of the territory comprised within the limits of the corporation, and its adaptation to the purposes of residence and business. As to the first, the municipal corporation represents the state — discharging’ the duties incumbent on the state ; as to the second, the municipal corporation represents the pecuniary and proprietary interests of individuals. As to the first, responsibility for acts done, or omitted, is governed by the same rule of responsibility which applies to like delegation of power; as to the second, the rules which govern the responsibility of individuals are properly applicable. ” In this case it was sought to make the city of Cleveland liable for Raving neglected its duty in not preventing the destruction of the property of the plaintiff by a riotous assemblage of persons. But in a subsequent case of Wheeler v. Cincinnati, 19 Ohio St., 19, the suit was for the recovery of damages against the city for having neglected to make proper provision for the extinguishment of fires and whereby the plaintiff’s property was destroyed. The court, however, held that the duty of the city in this regard fell within the category of the public duties of the city, and that there was no liability. Speaking of the powers conferred on municipal corporations for the extinguishment of fires, the court said: ‘ ‘The powers thus conferred are in their nature legislative and governmental; the extent and manner of their exercise, within the sphere prescribed by statute, are necessarily to be determined by the judgment and discretion of the proper municipal authorities, and for any defect in the execution of such powers, the corporation cannot be held liable to individuals. Nor is it liable for a neglect of duty on the part of fire companies, or their officers charged with the duty of extinguishing fires. The power of the city over the subject is that of a delegated quasi sovereignty, which excludes responsibility to individuals for the neglect or nonfeasance of an officer or agent charged with the performance of the duty.”

That the case just noticed is not in all respects like the one before us may be admitted. In it the city was charged with neglect in not making proper provisions for the extinguishment of fires, here it is charged with neglect in the management of an apparatus for the extinguishment of fires. But the cases uniformly hold that the principle on which municipal corporations are absolved from liability for negligence in the management of its fire department applies in the one ease as well as in the other. In Hayes v. The City of Oshkosh, 33 Wis., 314, the action was for property destroyed by a fire caused by negligence in working a steam fire engine. Dixon, O. J., in disposing of the case, said: “ The question presented in this case is settled by authority as fully and conclusively as any of a judicial nature can ever be said to have been.” Then after citing’ certain cases from Massachusetts, he proceeds: “The ground of exemption from liability, as stated in the authorities last named, are, that the corporation is engaged in the performance of a public service, in which it has no particular interest, and from which it derives no special benefit or advantage in its corporate capacity, but which it is bound to see performed in pursuance of a duty imposed by law for the general welfare of the inhabitants, or of the community; that the members of the fire department, although appointed by the corporation, are not, when acting in the discharge of their duties, servants or agents in the employment of the city, for whose conduct the city can be made liable; but they act rather as public officers of the city charged with a public service, for whose negligence or misconduct in the discharge of official duty no action will lie against the city; and hence the maxim respondeat superior has no application.”

The decision in this case is fully supported by the authorities, and the decisions in the other states of the union. There is, in fact, a remarkable unanimity on the subject. Dill. Mun. Cor., sections 976, 974; Jones Mun. Cor., section 31; Sher. & Red. Neg., section 264; Goddard v. Harftwell, 30 Am. Rep., note, page 388; Hill v. City of Boston, 122 Mass., 344, a leading case. And numerous other cases cited in brief of counsel, from the principal states of the union. In Tiedeman on Municipal Corporations, section 333, it is stated that “Municipal Corporations are not liable for the negligence of their firemen — although they may be appointed and removed by the city, and the performance of the duties are wholly subject to its control — where a person is run over by a hosecarriag'e on its way to a fire; for injuries caused by the bursting of a hose; for damage by fire caused by the negligence of the city’s firemen; for neglect in cutting off water by which the fire might have been sooner extinguished; by the bursting of the mains; because a horse is frightened by steam from an engine left in the street; or for any similar lack of care or skill. ’ ’ The cases in which it has been so held in these several instances, are cited in a note to the section. A case very much in point here is that of Thompson v. Mayor, etc., of New York, 52 Sup. Ct., 427, as there the injury for which the suit was brought, occurred while the employees of the fire department were engaged in testing a certain apparatus, i. e., a fire tower, prior to its purchase by the city; and on the g’round above stated, the city was held not liable. See also Edgerly v. Concord, 59 N. H., 78.

It is not always a simple matter to determine to which class of the duties of a municipal corporation a given case belongs. Okey, J., in Robinson v. Greenville, 42 Ohio St., 629. But as observed in Lloyd v. Mayor, etc., of New York, 5 N. Y., 374. “When the line is ascertained, it is not difficult to determine the rights of the parties, for the rules of law are clear and explicit which establish the rights, immunities and liabilities of the city when in the exercise of each class of powers. All that can be done probably with safety is, to determine in each case as it arises, under which class it falls.” This, however, has been fully determined by the decisions as to cases arising out of the neglect of the fire department of a city or any of its members. The duties violated are, in such cases, regarded as governmental in character, and no liability attaches to the city to compensate persons injured thereby.

The charge that the tower was defective to the knowledge of the city, and that it was negligent in not communicating this fact to the members of its fire department; and that the latter were inexperienced in the use of the tower, and that the city was negligent in not having properly instructed them in its management, so clearly fall within omissions of a governmental character as to need no further notice.

But it is claimed that the question of the city’s liability in this case is settled in this state by the case of Newark v. Frey. This is an unreported case, referred to by Okey, J., in delivering the opinion in Robinson v. Greenville 42 Ohio St., 625, 629. It is not there referred to as an authority supporting the decision in that case, for there the city was held not liable to a person injured by the discharge of a cannon in its streets by an assemblage of disorderly persons, on the ground that the neglect of a city to prevent such assemblages is simply the neglect of a governmental duty. Newark v. Frey was referred to as a ease falling within the rule of municipal liability for the acts of its agents. The act complained of was, as in this case, the testing of an apparatus for the extinguishment of fires, at which members of the city council were present. There was an explosion from some very inflammable materials used to make a fire, which caused the injury complained of, and the city was held liable. What consideration was given the case we do not know. It is not supported by any of the authorities referred to; and is so plainly contrary to the settled law upon the subject, as shown by the authorities that we do not feel bound by it.

Judgment affirmed.  