City of New York v. Workman, 118.

• Decision Date: 16 April 1895
• Docket Number: 118.
• Citation: 67 F. 347
• Parties: MAYOR, ETC., OF CITY OF NEW YORK et al. v. WORKMAN.
• Court: U.S. Court of Appeals — Second Circuit

67 F. 347

MAYOR, ETC., OF CITY OF NEW YORK et al. v. WORKMAN.

No. 118.

United States Court of Appeals, Second Circuit.

April 16, 1895

Francis M. Scott and David J. Dean, for appellant mayor, etc., of city of New York.

George L. Sterling, for appellant J. A. Gallagher.

Chas C. Burlingame and Harrington Putnam, for appellee.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

WALLACE Circuit Judge.

The evidence in the record adequately supports the conclusion of the court below that the injuries caused to the libelant's vessel by the impact of the fire boat were caused by the negligent management of the fire boat while the latter was trying to reach a convenient location to play upon a burning building near the pier at which the libelant's vessel was moored. The case, then, presents the legal question whether the municipal corporation, the mayor, etc of the city of New York, is responsible for the negligence of the members of its fire department, committed while attempting to extinguish a fire within the corporate limits. That the suit is brought in a court of admiralty instead of a common-law court, and that the negligence consisted in the improper navigation of the vessel, are considerations which cannot affect the conclusion. Although the vessel may have been the direct instrumentality, the offending thing, in effecting a marine tort, neither the vessel nor her owners can be held responsible by reason of that circumstance alone. The common case of a collision of a vessel in tow of another and a third vessel, produced by the negligence of the towing vessel, is a sufficient illustration. If the vessel in tow is free from negligence, neither she nor her owner is liable for the injury. Accountability, either personally or upon the principle of agency, must concur with injury to give a cause of action in any tribunal, equally in admiralty as at common law. If the city of New York would not have been liable if one of its steam fire engines, manned by the members of the fire department, had, by want of due care, while endeavoring to reach a conflagration, injured an individual or his property, it cannot be liable in the present suit.

It is familiar law that the officers selected by a municipal corporation to perform a public service for the general welfare of the inhabitants or the community, in which the corporation has no private interest, and from which it derives no special benefit or advantage in its corporate capacity, are not to be regarded as the servants or agents of the municipality, and for their negligence or want of skill it cannot be held liable. This is so, notwithstanding such officers derive their appointment from and are paid by, the corporation itself. In selecting and employing them, the municipality merely performs a political or governmental function; the duties intrusted to them do not relate to the exercise of corporate powers; and hence they are the agents or servants of the public at large. Upon this principle it has uniformly been decided by the courts that municipal corporations are not liable for the negligence or wrongful acts of the officers of the police or health departments, committed in the course of their ordinary employment. Unless the duties of the officers of the fire department are of a different complexion, and they are the servants of the municipality because they are engaged in performing one of its corporate functions, the same principle must extend immunity to the municipality for the negligent acts of these officers and their subordinates. A municipal corporation, like a private corporation, is liable to any person who has sustained injury in consequence of its neglect to perform a corporate duty; but because the duties of municipal corporations in respect to protecting their citizens from the dangers of fires are governmental, and not corporate, they are not liable to the owner of property injured by fire in consequence of their neglect to provide suitable fire apparatus, or to provide and keep in repair public cisterns, or the failure of their firemen to use proper efforts. Wheeler v. Cincinnati, 19 Ohio St 19; Patch v. Covington, 17 B.Mon. 722; Brinkmeyer v. Evansville, 29 Ind. 187; Weightman v. Washington, 1 Black, 39, 49; Kies v. City of Erie, 135 Pa.St. 144, 19 A. 942; Heller v Sedalia, 53 Mo. 159; Robinson v. Evansville, 87 Ind. 334. So uniform and numerous are the authorities against the proposition that a municipal corporation is liable for the negligent acts of these officers that to discuss it as an original question would seem to be inappropriate. In one of the most recent textbooks on the law of municipal corporations, the rule is thus stated: '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 their duties are wholly subject to its control. ' Tied. Mun. Corp. Sec. 333. A reference to the following adjudicated cases, in which the rule has been applied, will suffice to show how universally it obtains in the courts of this country: Hafford v. New bedford, 16 Gray, 297, in which a hose carriage on its way to a fire ran over the plaintiff; Fisher v. Boston, 104 Mass. 87, in which the injury was caused from the bursting of hose; Burrill v. Augusta, 78 Me. 118, 3 A. 177, in which a horse was frightened by escaping steam from an engine left in the street; Wild v. Paterson, 47 N.J.Law, 406, 1 A. 490, in which the injury was caused from a defect in the brake of an engine; Hayes v. Oshkosh, 33 Wis. 314, in which damage was sustained by the negligent...