Folk v. City of Milwaukee

• Decision Date: 07 December 1900
• Parties: FOLK v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

108 Wis. 359

84 N.W. 420

FOLK

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Dec. 7, 1900.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by John Folk, administrator, against the city of Milwaukee. From a judgment for defendant, plaintiff appeals. Affirmed.

This is an action brought by the administrator of the estate of Florence Folk to recover damages for the death of said Florence, caused by the negligence of the defendant. The complaint alleged the death of Florence Folk, the intestate, on the 16th day of February, 1897, at the age of 17 years; that she left surviving, as her sole heirs at law, her father and mother; that the plaintiff was duly appointed administrator of her estate on the 20th of November, 1897, and has duly qualified as such; that during certain months of the year 1896 the deceased, Florence Folk, was lawfully attending school at one of the public-school buildings owned and maintained by said city of Milwaukee, and that while so attending, without fault or negligence on her part, she was made sick by sewer gas which escaped from the sewer in said building by reason of the fact that such sewer was negligently and carelessly allowed to become out of repair and clogged up, with the knowledge of the city authorities, so that it failed to carry off the refuse matter contained in it, thereby creating a nuisance; that said Florence Folk died February 16, 1897, in consequence of sickness caused by said poisoning; that notice of the claim was served on the city officers January 14, 1898. A general demurrer to this complaint was sustained, and the plaintiff appeals.Toohey & Gilmore, for appellant.

Carl Runge (C. H. Hamilton, of counsel), for respondent.

WINSLOW, J. (after stating the facts).

The question is whether a city is liable for the death of a child lawfully attending one of its public schools, when such death is caused by negligently allowing the sewer of the school building to become clogged up. We think this question must be answered in the negative. This court early adopted and has consistently maintained the rule that a municipal corporation is not liable for injuries resulting from the acts or defaults of its officers where it is engaged in the performance of a merely public service, from which it derives no benefit in its corporate capacity, but which it is bound to see performed in pursuance of a duty imposed by the law for the general welfare of the inhabitants or of the community. Hayes v. City of Oshkosh, 33 Wis. 314. The case cited was one where the negligence claimed was the negligence of firemen in the discharge of their duty, and the same principle has been applied to the acts of taxing officers, policemen, and health officers. Wallace v. City of Menasha, 48 Wis. 79, 4 N. W. 101;Kuehn v. City of Milwaukee, 92 Wis. 263, 65 N. W. 1030;Kempster v. City of Milwaukee, 103 Wis. 421, 79 N. W. 411. That the city is performing such a public duty in maintaining public schools cannot be doubted. The principle is thus stated in 1 Shear. & R. Neg. (5th Ed.) § 267: “The duty of providing means of education at the public expense by building and maintaining school houses, employing teachers, etc., is purely a...