City of Nashville v. Mason

• Decision Date: 24 February 1917
• Citation: 192 S.W. 915
• Parties: CITY OF NASHVILLE v. MASON.
• Court: Tennessee Supreme Court

Page 915

192 S.W. 915

CITY OF NASHVILLE v. MASON.

Supreme Court of Tennessee.

February 24, 1917.

Appeal from Circuit Court, Davidson County; A. G. Rutherford, Judge.

Action by J. C. Mason against the City of Nashville. Judgment for plaintiff, and defendant appeals. Affirmed.

Ewing & Garard, of Nashville, for City of Nashville. Tillman & Tillman and B. D. Shriver, all of Nashville, for Mason.

LANSDEN, J.

This action was brought by Mason, the owner of a certain house, against the city for the destruction of the house by fire. There were verdict and judgment for plaintiff below, which was affirmed by the Court of Civil Appeals. The city has filed a petition for certiorari, which has been granted, and the case argued at the bar.

The undisputed facts are, so far as need be stated, that the city maintains a garbage dump which is composed of paper, rags, paint, oil, sticks, brush, manure, ashes, and all refuse found upon the streets of the city and upon the premises of private persons. The city gathers up the refuse and hauls it to the dump and piles it up in one mass. The dump is situated 100 or 150 feet from the residence of plaintiff below, and was about 35 feet above the house that was destroyed. This dump was on fire, and had been on fire for more than a month preceding the accident. This fire at times would burn low, but when new deposits were put upon the dump, it would flash up. The dump was very large at the base and occupied considerable space. As stated, it was about 35 feet high. On the day that plaintiff's house was burned, there was a high wind blowing over the dump in the direction of plaintiff's house, and fire was communicated in this way.

The only question not decided by the verdict of the jury approved by the trial judge is the nature of the duties which the city performed in gathering up the garbage and piling it upon the dump and maintaining the dump. There are some cases which hold that the action of the city in gathering up garbage and the like off the streets and the premises of private persons is a municipal act done by the city in the room and stead of property owners, and therefore it is liable for negligence as a private person. City of Denver v. Davis, 37 Colo. 370, 86 Pac. 1027, 6 L. R. A. (N. S.) 1013, 119 Am. St. Rep. 293, 11 Ann. Cas. 187; Denver v. Porter, 126 Fed. 288, 61 C. C. A. 168; Missano v. New York, 160 N. Y. 123, 54 N. E. 744.

In our own reports no case involving a city dump has been found, but in Foster v. Water Company, 3 Lea, 42, it was held that the city was not liable for the destruction of plaintiff's house by fire on account of the failure of the water company to furnish water while under contract with the city to do so. It was held in Irvine v. Chattanooga, 101 Tenn. 291, 47 S. W. 419, that the duty of the city to extinguish fires is a public and not a municipal one, and therefore an action would not lie...