City of Hattiesburg v. Geigor

Citation79 So. 846,118 Miss. 676
Decision Date18 November 1918
Docket Number20362
CourtMississippi Supreme Court
PartiesCITY OF HATTIESBURG v. GEIGOR

Division A

APPEAL from the circuit court of Forest county, HON. PAUL B JOHNSON, Judge.

Suit by L. B. Geigor against the City of Hattiesburg. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed.

Sullivan & Sullivan, for appellant.

The decisions of the reported case are in harmony with the well-settled rule that a municipal corporation, in the absence of statutory provisions to the contrary, is not liable in damages to the one injured by the negligent acts of firemen engaged in the line of their duty, although they are appointed, employed, and paid by the municipality. California -- Howard v. San Francisco, 51 Cal. 52; Connecticut--Jewett v. New Haven, 38 Conn. 368; Georgia--Wright v. Augusta, 7 Ga. 241; Illinois--Wilcox v. Chicago, 107 Ill. 334; Indiana--Brinkmeyer v. Evansville, 29 Ind. 187; Robinson v. Evansville, 87 Ind. 334; Aschoff v Evansville, 34 Ind.App. 25, 72 N.E. 279; Iowa--Saunders v. Fort Madison, 111 Iowa 102, 82 N.W. 428; Kentucky--Greenwood v. Louisville, 13 Bush. (Ky). 226; Davis v. Lebanon, 108 Ky. 688, 57 S.W. 471; Louisiana--Yule v. New Orleans, 25 La Ann. 394; Maine--Burrill v. Augusta, 78 Me. 118, 3 A. 177; Massachusetts--Hartford v. New Bedford, 16 Gray (Mass.) 297; Fisher v. Boston, 104 Mass. 87; Tindley v. Salem, 137 Mass. 171; Minnesota--Grube v. St. Paul, 34 Minn. 402, 26 N.W. 228; See, also--Miller v. Minneapolis, 75 Minn. 133, 77 N.W. 788; Mississippi--Alexander v. Vicksburg, 68 Miss. 564; Missouri--Heller v. Sedalia, 53 Mo. 159; McKenna v. St. Louis, 60 Mo.App. 320; Nebraska--Gillespie v. Lincoln, 35 Neb. 34, 53 N.W. 811; New Hampshire--Edgerly v. Concord, 59 N.H. 78; New York--Smith v. Rochester, 79 N.Y. 506; O'Meara v. New York, 1 Daly (N. Y.), 425; Woolbridge v. New York (Sup. Crt. Spec. T.), 49 Howard Pr. (N. Y.) 67; Thompson v. New York, 52 N. Y. (Sup. Ct.), 427; North Carolina--Peterson v. Wilmington, 130 N.C. 76, 40 S.E. 853; Ohio -- Wheeler v. Cincinnati, 19 Ohio St. 19; Frederick v. Columbus, 58 Ohio St. 538, 51 N.E. 35; Oregon -- Wagner v. Portland, 40 Oregon 389, 60 P. 985, 67 P.--; Pennsylvania -- Kies v. Erie, 135 Pa. St. 144, 19 A. 942; Freeman v. Philadelphia, 13 Phila. (Pa.), 154, 36 Leg. Int. (Pa.) 148; Rhode Island--Dodge v. Granger, 17 R. I. 664, 24 A. 100; Texas--Shanewerk v. Fort Worth, 11 Tex. Civ. App. 271, 32 S.W. 918; Blankenship v. Sherman, 33 Tex. Civ. App. 507, S.W. 805; Vermont--Welsh v. Rutland, 56 Vt. 236; Washington -- Lawson v. Seattle, 6 Wash. 184, 33 P. 347; Lynch v. N. Yakoma, 37 Wash. 657, 80 Pac. Wisconsin -- Rayes v. Oshkosh, 33 Wis. 314; Manske v. Milwaukee, 123 Wis. 172, 101 N.W. 377.

Counsel cites 19 Ruling Case Law, page 1085, paragraph 372, but an examination of this authority will show that it does not apply to the case at bar. Section 372 cited deals with the construction of public improvements negligently constructed or negligently maintained, and does not deal with fire departments at all.

Ruling Case Law does deal with the question of municipal liability in conducting a fire department and expressly declares that a municipality acts in its governmental capacity in conducting a fire department, and that the firemen are not agents and servants of the municipality so as to render it civilly liable for their misconduct or negligence.

It is also stated that a city is not liable to a fireman or other employee of the fire department who is injured by defective apparatus. Several cases are cited to support this statement, and the case of Bowden v. Kansas City, 69 Kans. 587, is cited contra; See 19 Ruling Case Law, pages 1117 and 1118, paragraphs 398 and 399.

The above authority cites the case of Long v. Birmingham, 161 Ala. 427, 49 So. 881, 18 Ann. Cas. 507, and note, with other authorities, to show no liability on the municipality to the fireman for injury while engaged about his duties as fireman.

Currie & Currie, for appellee.

Appellant lays down its contention in the following paragraph of its reply brief: "The decision of the reported case is in harmony with the well settled rule that a municipal corporation in the absence of statutory provisions to the contrary, is not liable for damages to one injured by the negligent acts of firemen engaged in the line of their duty, although they are appointed, employed, and paid by the municipality."

We assume that the cases cited by counsel in the reply brief support the above paragraph, but they do not answer the case of the appellee, for the reason that the point held in these cases is that a municipality is not liable in damages to a third person for injuries inflicted by the negligence of the firemen while engaged in extinguishing a fire. And, in passing, we call the court's attention to the fact that this is the point decided by this honorable court in the case of Alexander v. The City of Vicksburg.

The case at bar is one in which the appellee, Geigor, was himself a fireman and was injured on account of the negligence of Potter, the chief of the fire department, and the authorities cited by the appellant are not in point. The facts of the case cited by appellant are different from the facts in the case at bar for decision.

So far as we have been able to see the only Mississippi decision which the appellant cites and urges is the case of Alexander v. The city of Vicksburg. In that case, the horse of Alexander was run into and killed while the fireman was on his way to the scene of a fire for the purpose of fighting and extinguishing it. The question in the Alexander case was therefore: Is a municipality liable in damages to a third person for injury inflicted upon him by the negligence of a fireman while engaged in fighting and extinguishing a fire? The Alexander case is not an authority in point.

The appellee in the case at bar was not at all engaged in any sort of work about fighting or extinguishing a fire. The appellant was not at all engaged in any sort of work about fighting or extinguishing a fire, at the time the appellee, Giegor, received his injuries. Potter, the fire chief, and Giegor, the appellee, were engaged solely in sheltering and caring for the horses regularly used at fire station number two and being temporarily kept in this dangerous shed or barn, under the sole and exclusive orders of Potter, the chief of the fire department.

The record establishes the fact, and it is admitted by the appellant, and the testimony of Chief Potter shows that the appellee was under the control of Chief Potter, subject to his orders and was bound to obey the orders given him by Chief Potter.

In page three of its reply brief, the appellant cites the text of Fifth Edition of Dillon, Vol. 4, section 1660, page 2893, in support of its contention. That paragraph is not in point. It simply says that a municipality is not liable for the negligence of firemen appointed and paid by it who, when engaged in their line of duty upon an alarm of fire, run over a person on the way to the fire. This paragraph announces what the case of Alexander v. The City of Vicksburg decided.

There is not to be found reported from the state of Mississippi, a decision based upon facts the same or similar to the facts in the case at bar, in which this honorable court upheld that there was no liability against the municipality on the theory argued by the appellant. At least, the appellee has not been able to discover such a decision, and the appellant has failed to cite such decision and we therefore, feel safe in saying that it has found no such case.

The exact point presented by the record in this case, and the exact and precise question presented, is, so far as the adjudication of this honorable court are concerned, an open question, and we submit that there is a clean, clear-cut line of cleavage between those duties and functions which are legislative, judicial, and political, in their nature, and those which are ministerial; and that the appellant in passing the ordinance establishing the fire department providing for the three stations and their equipments was discharging a governmental duty, but that Chief Potter and the firemen who had control and management of the fire apparatus were performing merely ministerial duties in looking after, caring for, and preserving the equipment and apparatus.

We submit that the case of Bowden v Kansas City, in which Bowden was a fireman, and the other decisions cited by the appellee are exactly in point, deal directly with the question involved in this case, and that the doctrine laid down in these cases is absolutely unanswerable in law, reason, and justice.

But the appellant does not undertake to answer the further proposition laid down by the appellee.

The appellee contends that the appellant is liable for the reason that Potter, the chief of the fire department, overstepped and abused his power and authority delegated to him by the appellant in carelessly and negligently ordering and requiring the appellee to keep his horses and wagon in this dangerous barn or shed, as a proximate and direct result of which the appellee received his injury.

Potter, the chief of the fire department, was acting within the apparent scope of his authority and in line with his duties in ordering the appellee to keep his horses and wagon in this dangerous shed or barn, and it was the duty of the appellee to obey these orders, and he was acting in obedience to these orders at the time of his injury.

The city of Hattiesburg, acting as a municipality, had not, so far as the record in this case shows, ordered that the fire equipments from stations number two and three be moved into this shed, or barn:...

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