Engel v. City of Milwaukee

• Decision Date: 27 October 1914
• Parties: ENGEL v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

158 Wis. 480

149 N.W. 141

ENGEL

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Oct. 27, 1914.

Appeal from Circuit Court, Milwaukee County; O. T. Williams, Judge.

Action by Rudolph Engel against the City of Milwaukee. Judgment for defendant, and plaintiff appeals. Affirmed.

This action was brought against the defendant, city of Milwaukee, to recover damages alleged to have been caused through the negligence of the employés of the defendant city, which resulted in plaintiff's injury. Upon the trial the court sustained the defendant's objection to receiving evidence under the complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action, and ordered judgment against the plaintiff dismissing the complaint with costs. Judgment was entered accordingly, from which this appeal was taken.Lehr, Kiefer & Reitman (J. Elmer Lehr, of Milwaukee, of counsel), for appellant.

Daniel W. Hoan, City Atty., and E. L. McIntyre, Asst. City Atty., both of Milwaukee, for respondent.

KERWIN, J. (after stating the facts as above).

The facts are fully set out in the complaint, from which it appears that the injury complained of was caused by the negligence of an employé of the defendant city while engaged in the department of fire and police alarm system of the defendant city, authorized by section 959--46d Stats., in running an automobile used in such service so negligently as to cause the injury set forth in the complaint.

The only question in the case is whether the defendant city is liable for injuries caused through the negligence of an employé of the defendant while engaged in performing the services alleged. There is no doubt but that the duties which the employé was performing for the defendant city at the time of the accident were public or governmental duties. It is settled by the decisions of this court that a city is not liable for the negligence of one in its employ while engaged in the performance of a public or governmental function. Hayes v. Oshkosh, 33 Wis. 314, 14 Am. Rep. 760;Manske v. Milwaukee, 123 Wis. 172, 101 N. W. 377;Kuehn v. Milwaukee, 92 Wis. 263, 65 N. W. 1030;Higgins v. Superior, 134 Wis. 264, 114 N. W. 490, 13 L. R. A. (N. S.) 994;Kempster v. Milwaukee, 103 Wis. 421, 79 N. W. 411;Folk v. Milwaukee, 108 Wis. 359, 84 N. W. 420;Liermann v. Milwaukee, 132 Wis. 628, 113 N. W. 65, 13 L. R. A. (N. S.) 253.

The facts alleged in the complaint bring the present case within the rule of the...