City of Indianapolis v. Butzke

• Citation: 26 N.E.2d 754,217 Ind. 203
• Decision Date: 22 April 1940
• Docket Number: 27363.
• Parties: CITY OF INDIANAPOLIS v. BUTZKE.
• Court: Supreme Court of Indiana

26 N.E.2d 754

217 Ind. 203

CITY OF INDIANAPOLIS v. BUTZKE.

No. 27363.

Supreme Court of Indiana

April 22, 1940

Rehearing Denied May 27, 1940.

See 27 N.E.2d 350.

Appeal from Clinton Circuit Court, Frank J. Russell Judge.

Edward H. Knight, of Indianapolis, Earl F. Gruber of Frankfort, and Floyd J. Mattice, Michael B. Reddington, City Atty., and Oscar C. Hagemier, Asst. City Atty., all of Indianapolis, for appellant.

Little, Little & Horn, of Indianapolis, Floyd Christian, of Noblesville, and Thomas Ryan and Robison & Robison, all of Frankfort, for appellee.

FANSLER Judge.

The appellee, while a member of the fire department of the city of Indianapolis, was injured in a collision between two fire trucks, as a result of which he lost one of his legs. He brought this action seeking to recover damages for the injury. His complaint charges negligence in the maintenance of the city's fire apparatus. There was a trial, verdict, and judgment of $35,000 for the plaintiff.

The appellee has moved to dismiss the appeal upon the ground that no question is presented for review. It is contended that the amended complaint was re-amended and the demurrer was not refiled, so that the ruling on the demurrer cannot be considered. But, as hereafter indicated, the same question arises upon the ruling on the motion for a new trial, and we need not consider that question. It is contended that the evidence is not properly brought into the record for the reason that the transcript of the evidence was filed in the office of the clerk before the bill of exceptions was presented to the judge for his signature. The certificate of the judge discloses that the bill of exceptions containing the evidence 'is now this 8 day of April, 1938, signed, sealed, and filed, and made a number in the record in this cause,' and, since the certificate of the clerk, dated the same day, certifies that the bill of exceptions in the transcript 'is the original bill of exceptions filed in said cause,' it is sufficiently established that it was signed and filed and properly brought into the record. The motion to dismiss is overruled.

The only assigned error that we need notice is the overruling of the motion for a new trial upon the ground that the decision is contrary to law.

It is recognized by both parties that, in this state, cities are not liable for the negligent operation of their fire departments and fire apparatus, but the appellee contends that this case is not governed by the ordinary rule for three reasons. First, it is alleged, and proved, that the city maintained and operated a repair shop and garage for the repair of its fire trucks and apparatus by a special force of men, whose sole duty was the repairing and rebuilding of apparatus. It is conceded that if the apparatus was repaired in the regular fire house by the regular firemen the city would not be liable for negligent maintenance, but it is contended that, since it is all brought to one common spot, away from the fire house, and, since the repair work is done by a special group of men who do nothing else, the city is acting in its private and business capacity in making the repairs, and is therefore liable for negligent maintenance of the apparatus. We fail to find any logical or reasonable basis for a distinction in liability because of the difference in methods of doing repair and maintenance work. We do not take this contention seriously.

Secondly, it is alleged, and was proven, that the city of Indianapolis furnishes the town of Woodruff Place, a separate municipal corporation, which lies entirely within the corporate limits of the city of Indianapolis, with fire protection, for a definite annual consideration, and that it furnishes fire protection to other municipalities for a consideration. It is urged that this is engaging in a private business enterprise for an immediate profit or advantage to the municipal corporation, and in which the corporation has a local and special interest; that the city is therefore not acting governmentally in the maintenance of its fire department, and that, although the accident complained of did not occur in connection with furnishing fire protection service to the town of Woodruff Place, or to any other municipal corporation outside the city of Indianapolis, the city is liable. In City of Kokomo v. Loy, 1916, 185 Ind. 18, 23, 24, 112 N.E. 994, 996, it is said: 'While the distinction between public and private functions as affecting liability for negligence of its agents is generally recognized, a great deal of confusion arises when an attempt is made to determine in what capacity the municipality was acting in committing the particular tort complained of. Many different rules have been formulated on the subject by jurists and text-writers, who apply tests of whether the department in which the injury occurred was of a nature legislative or administrative, discretionary or ministerial, performed by persons whose offices were created by the Legislature or the municipality, whether the department and its duties were made mandatory by the statutes of the state or were merely permissive, or whether the city received any pecuniary benefit in the operation of such department or operated it gratuitously. Such rules and tests have no uniform application, and many authorities expressly find it impossible to state by way of definition any rule sufficiently exact to be of much practical value. Each case must be determined under a true interpretation of the statute under which the municipality was created, and under a proper conception of the powers and duties delegated to it. Upon the historical theory that the king or sovereign power is being exercised in the keeping of the peace, passing and enforcing laws and ordinances, preserving the public health, preventing fires, caring for the poor, and carrying on a...