Cunningham v. City of Seattle

• Decision Date: 07 September 1905
• Parties: CUNNINGHAM v. CITY OF SEATTLE.
• Court: Washington Supreme Court

82 P. 143

40 Wash. 59

CUNNINGHAM v. CITY OF SEATTLE.

Supreme Court of Washington

September 7, 1905

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by R. Cunningham against the city of Seattle. From a judgment for plaintiff, defendant appeals. Reversed.

Rudkin and Fullerton, JJ., dissenting.

Mitchell Gilliam and Hugh A. Tait, for appellant.

H. E Foster, for respondent.

CROW J.

Respondent instituted this action against the city of Seattle appellant, to recover damages occasioned by a certain horse trespassing upon and destroying respondent's lawn. On trial the court made findings of fact to the effect that on September 6, 1904, appellant city was maintaining near respondent's residence a certain enginehouse as a part of its fire department, and keeping there numerous horses; that on said date, through the negligence of said city, one of said horses trespassed upon respondent's lawn, by running over, tearing up, and destroying the same; and that said horse was owned, kept, and used by said city exclusively in said fire department. Upon said findings judgment was entered in favor of respondent, and this appeal has been taken.

It clearly appears from the evidence that said horse was in the exclusive charge, care, and control of the regular employés of said fire department. Appellant contends that no negligence on the part of the city or its employés has been shown; but, without passing on that question, we will, in disposing of this case, accept the findings as made by the trial court. Appellant further contends that, even though negligence be conceded, still it is not liable to respondent for any damage caused by its employés in the maintenance and operation of its fire department. This contention, we think, should be sustained. The maintenance of a fire department by a municipal corporation is the exercise of a public or governmental function. 'The rule is general that a municipal corporation is not liable for alleged tortious injuries to the persons or property of individuals, when engaged in the performance of public or governmental functions or duties.' 20 Am. & Eng. Ency. of Law (2d Ed.) 1193. The only question here is whether appellant is liable for damage done to respondent's property by reason of negligent acts of the members of its fire department. Under the authorities this question has been almost uniformly answered in the negative. The Supreme Court of Ohio in Frederick v. City of Columbus, 58 Ohio St. 546, 51 N.E. 35, says: 'The ground on which the nonliability 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 nonliability 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.' The holdings of this court have been to the same effect. Lawson v. Seattle, 6 Wash. 185, 33 P. 347; Russell v. Tacoma, 8 Wash. 156, 35 P. 605, 40 Am. St. Rep. 895; Simpson v. Whatcom, 33 Wash. 392, 74 P. 577, 63 L. R. A. 815, 99 Am. St. Rep. 951; Lynch v. City of North Yakima (Wash.) 80 P. 79. In Lynch v. City of North Yakima, this court, speaking by Root, J., said: 'But it may generally be accepted that a city is not liable for an improper discharge by its officers of a purely governmental function. The duties of an officer or employé of a fire department are regarded as for the benefit of the community, and not for the mere advantage of the municipality as a corporate body. The city, possessing, as it does, a portion of the sovereignty of the state, in the exercise thereof provides and maintains a fire department. The services of this department are for the benefit of all persons who may have property in the city limits capable of injury by fire. It would seem, therefore, that in creating, maintaining, and operating the fire department the city was exercising governmental functions.'

Under the above authorities, we think the city of Seattle was not liable to respondent for damages resulting from negligent acts of the employés in its fire department. The trial court, therefore, erred in entering judgment for said respondent. The judgment is reversed, with instructions to dismiss the action.

MOUNT, C.J., and ROOT and HADLEY, JJ., concur.

RUDKIN J. (dissenting).

The majority opinion states the question presented on this appeal in the following language: 'The only question here is whether appellant is liable for damage done to respondent's property by reason of negligent acts of the members of its fire department.' It seems to me a more correct statement of the proposition would be this: Can a municipality owning horses, and having exclusive dominion over them, permit them to trespass upon the private property of others, with impunity? Judge Cooley, in his work on Torts states the rule of...