Ford v. City of Caldwell

• Citation: 79 Idaho 499,321 P.2d 589
• Decision Date: 10 February 1958
• Docket Number: No. 8534,8534
• Parties: Catherine FORD, as Guardian of the person and estate of David William Ford, a minor, Plaintiff-Appellant, v. The CITY OF CALDWELL, Idaho, a municipal corporation, Defendant-Respondent.
• Court: United States State Supreme Court of Idaho

Page 589

321 P.2d 589

79 Idaho 499

Catherine FORD, as Guardian of the person and estate of David William Ford, a minor, Plaintiff-Appellant, v. The CITY OF CALDWELL, Idaho, a municipal corporation, Defendant-Respondent.

No. 8534.

Supreme Court of Idaho.

Feb. 10, 1958.

Meek & Miller, Caldwell, Donart & Donart, Weiser, for appellant.

Frank F. Kibler, Nampa, for respondent.

SMITH, Justice.

Appellant perfected this appeal from a judgment of dismissal which resulted when the trial court sustained respondent's general demurrer to appellant's amended complaint without leave to amend. Relevant facts alleged in the amended complaint are hereinafter related.

David William Ford, a minor, was eight years old when injured April 20, 1955, in the manner alleged in the complaint. The minor's father, Leslie Ford, was employed by respondent as a fireman on that date.

Respondent, a city of the second class, maintains a three-story building used both as a City Hall and a fire station. Respondent's fire fighting apparatus is kept on the concrete ground floor of the building. A portion of the second floor is the living quarters, called the ready room, of the firemen on duty. There is a 27-inch hole in the floor of this room, and through it extends a perpendicular tube or pole which the firemen use for rapid descent to the fire fighting apparatus.

For a long time prior to and on April 20, 1955, it was the custom and practice of respondent to allow firemen's friends and family members to visit firemen in their living quarters, the ready room. On the date mentioned, about 4:15 p. m., the boy at the invitation and consent of firemen then on duty,--the boy's father and two other firemen,--entered the ready room staying there about twenty minutes. He had with him a rocket toy which he showed to the firemen. While the two firemen, other than the boy's father, were shooting the toy through the air, the boy fell through the hole in the floor of the ready room onto the concrete floor below, sustaining serious and permanent injuries.

Respondent, April 20, 1955, was a named insured in a policy of liability insurance issued by United Pacific Insurance Company, effective from May 1, 1952 to May 1, 1955, at 12:01 a. m., insuring respondent in the sum of $50,000 for injury to any one person, and $100,000 for each accident.

The amended complaint refers to the 1955 amendment to I.C. § 41-3304 (Sess. Laws 1955, c. 146), effective under its emergency clause from and after March 12, 1955, requiring a special endorsement to be attached on liability policies purchased by or sold to the State or any political subdivision. Certain portions of the 1955 amendment read:

'On all liability policies purchased by or sold to the state of Idaho, * * * and all political subdivisions organized under the general laws of the state of Idaho and exercising sovereign powers, * * * which shall protect the state of Idaho, * * * or any other political subdivision of the state of Idaho, including municipalities * * * against liability, for tort claims, shall have an endorsement attached thereto, which shall read as follows: 'It is agreed that in the event of claim or suit arising under this policy, the company will not deny liability because of any legal exemption to which the named insured may be entitled by reason of it being a sovereign state or department of a State Government or any political subdivision thereof, including municipalities and specially chartered subdivisions.''

The amended complaint sets out that such an endorsement was not attached to the policy.

The amended complaint alleges that the minor's injuries and damage were proximately caused by the negligence of respondent in inviting and permitting the minor to play in and around the fire station near the open hole in the floor and in failing to protect the minor from the danger of falling through it, when in the exercise of reasonable care respondent knew or should have known of such dangerous condition of its premises.

It is well established in this jurisdiction that a municipality in the absence of a statute imposing liability is not liable for the torts of its officers and employees occurring in the exercise of a governmental function; it is liable only when acting in a proprietary capacity. Strickfadden v. Greencreek Highway Dist., 42 Idaho 738, 248 P. 456, 49 A.L.R. 1057; Henderson v. Twin Falls County, 56 Idaho 124, 50 P.2d 597, 101 A.L.R. 1151; Splinter v. City of Nampa, 70 Idaho 287, 215 P.2d 999, 17 A.L.R.2d 665; Hooton v. City of Burley, 70 Idaho 369, 219 P.2d 651; Lundahl v. City of Idaho Falls, 78 Idaho 338, 303 P.2d 667. See also Stang v. City of Mill Valley, 38 Cal.2d 486, 240 P.2d 980; Delaware Liquor Store v. Mayor and Council, etc., 6 Terry, Del., 461, 75 A.2d 272; Banks v. City of Albany, 83 Ga.App. 640, 64 S.E.2d 93; Johnston v. City of East Moline, 405 Ill. 460, 91 N.E.2d 401; Mardis v. City of Des Moines, 240 Iowa 105, 34 N.W.2d 620; Rhodes v. Kansas City, 167 Kan. 719, 208 P.2d 275; Molinari v. City of Boston, 333 Mass. 394, 130 N.E.2d 925; Anderson v. City of Philadelphia, 380 Pa. 528, 112 A.2d 92; Lakoduk v. Cruger, 47 Wash.2d 286, 287 P.2d 338; Britten v. City of Eau Claire, 260 Wis. 382, 51 N.W.2d 30; Wilson v. City of Laramie, 65 Wyo. 234, 199 P.2d 119.

Municipal corporations without classification as to class, and cities of the second class, in their corporate capacities are legislatively authorized to prevent and extinguish fires and to acquire all necessary apparatus and equipment, including engine houses, to maintain a fire department. I.C. §§ 50-313, 50-1101 and 50-1137.

While the legislative grant authorizing municipal corporations to establish fire departments (I.C. § 50-1137) is couched in permissive language (I.C. § 50-1101), nevertheless 'A municipal corporation is exercising a governmental function when maintaining and operating a fire department pursuant to legislative authority,' Brock-Hall Dairy Co. v. City of New Haven, 122 Conn. 321, 189 A. 182, 183; Richardson v. City of Hannibal, 330 Mo. 398, 50 S.W.2d 648, 84 A.L.R. 508.

The weight of authority is to the effect that a municipality exercises a governmental function in the maintenance of its fire department. Stang v. City of Mill Valley, supra; Barker v. City and County of Denver, 113 Colo. 543, 160 P.2d 363; Banks v. City of Albany, supra; Department of Treasury v. City of Evansville, 223 Ind. 435, 60 N.E.2d 952, 955; Rhodes v. Kansas City, supra; Powell v. Village of Fenton, 240 Mich. 94, 214 N.W. 968; Gilbert v. New Mexico Const. Co., 39 N.M. 216, 44 P.2d 489; Johnston v. City of Grants Pass, 120 Or. 364, 251 P. 713, 252 P. 1118; Smiddy v. City of Memphis, 140 Tenn. 97, 203 S.W. 512; Cawley v. Board of Trustees, 138 W.Va. 571, 76 S.E.2d 683; Rollow v. Ogden City, 66 Utah 475, 243 P. 791; Cunningham v. City of Seattle, 40 Wash. 59, 82 P. 143, 4 L.R.A.,N.S., 629, rehearing 42 Wash. 134, 84 P. 641, 4 L.R.A.,N.S., 629; White v. City of Casper, 35 Wyo. 371, 249 P. 562. McQuillan, Municipal Corporations, 3rd Ed., Vol. 18, p. 290, sec. 53.52.

Since a municipality in the maintenance of its fire department exercises governmental functions it has been held generally that a municipality is not liable for the negligence of officers and servants in connection with its fire department. Barker v. City and County of Denver, supra; Rhodes v. Kansas City, supra; Vezina v. City of Hartford, 106 Conn. 378, 138 A. 145; Rogers v. City of Atlanta, 143 Ga. 153, 84 S.E. 555; Bradley v. City of Oskaloosa, 193 Iowa 1072, 188 N.W. 896; City of Louisville v. Bridwell, 150 Ky. 589, 150 S.W. 672; Howard v. City of Stillwater, 171 Minn. 391, 214 N.W. 656; Thompson v. City of Albion, 115 Neb. 208, 212 N.W. 37; Kling v. City of Austin, Tex.Civ.App., 62 S.W.2d 689; White v. City of Casper, supra; Delaware Liquor Store v. Mayor and Council, etc., supra; Perkins v. City of Lawrence, 177 Kan. 612, 281 P.2d 1077; McQuillan, Municipal Corporations, 3rd Ed., Vol. 18, p. 291, sec. 53.50.

The overwhelming weight of authority is to the effect that a municipal corporation is not liable for torts arising from the defective condition, or negligent construction or operation of its fire fighting facilities and apparatus. Brock-Hall Dairy Co. v. City of New Haven, supra; Larimore v. Indianapolis Water Co., 197 Ind. 457, 151 N.E. 333; Abihider v. City of Springfield, 277 Mass. 125, 177 N.E. 818; Bradley v. City of Jackson, 153 Miss. 136, 119 So. 811; Piasecke v. City of New York, Sup.App.T., 24 N.Y.S.2d 298; 62 C.J.S. Municipal Corporations § 592, p. 1223; 63 C.J.S. Municipal Corporations § 776, p. 81; 38 Am.Jur., Municipal Corporations p. 326, sec. 625; Annotations, 9 A.L.R. 143, 33 A.L.R. 688; 84 A.L.R. 514.

Particularly, a municipal corporation is not liable for negligence in maintaining a pole extending through a hole in the floor from the firemen's quarters to the fire fighting apparatus on the floor below since such is in the exercise of a governmental function. Piasecke v. City of New York, supra. Such doctrine of non-liability absolves the municipal corporation from liability for negligence of its servants in cases where invitees or licensees are injured by falling through such a hole left unguarded. 38 Am.Jur., Municipal Corporations, p. 326, sec. 625. In Brown v. District of Columbia, 29 App.D.C. 273, 25 L.R.A.,N.S., 98, Nicastro v. City of Chicago, 175 Ill.App. 634, and Haynes v. City of New York, 259 App.Div. 837, 19 N.Y.S.2d 164, minor invitees were denied recoveries, and in Barnes v. City of Waco, Tex.Civ.App., 262 S.W. 1081, survivors of a deceased physician called to examine a fireman were denied recovery.

Appellant urges, though the maintenance of respondent's fire department may be a governmental function, that nevertheless respondent's immunity from liability for the negligent acts of its officers and servants growing out of such governmental function, is waived by the provisions of Idaho Sess.Laws 1955, c....