Frederick v. City of Columbus

• Decision Date: 21 June 1898
• Citation: 51 N.E. 35,58 Ohio St. 538
• Parties: FREDERICK v. CITY OF COLUMBUS.
• Court: Ohio Supreme Court

51 N.E. 35

58 Ohio St. 538

FREDERICK v. CITY OF COLUMBUS.

Supreme Court of Ohio.

June 21, 1898

Error to circuit court, Franklin county.

Action by Ella Frederick, administratrix, against the city of Columbus. A judgment sustaining a demurrer to the petition was affirmed by the circuit court, and plaintiff brings error. Affirmed.

Syllabus by the Court

A municipal corporation is not, in the absence of any statutory provision, liable in damages to one injured by the negligent acts of its fire department or any of its members; nor is it liable for negligence in omitting to inform the members of its fire department of defects in the apparatus of the department, known to itself, nor for neglecting to instruct its fire department in the proper use and management of such apparatus.

J. T Holmes, F. A. Davis, and Cyrus Huling, for plaintiff in error.

Barger & Irvine, for defendant in error.

MINSHALL, J.

The city of Columbus having purchased a certain apparatus for the extinguishment of fires, called a ‘fire tower,’ its fire department was engaged on June 24, 1894, in a practice drill on one of its principal streets, when, by the negligent management of the members of the department, it fell, and caused the death of the plaintiff's husband. He was at the time sitting in his buggy near by, and was without fault on his part in any way contributing to the result. Whereupon his wife, having been appointed his administratrix brought suit against the city to recover damages for the wrongful causing of his death. She charged negligence against the members of the department in managing the tower; also that the tower was defective, to the knowledge of the city and that it was negligent in not communicating this fact to the members of its fire department; and that the latter were inexperienced in the use of the tower; and that the city was negligent in not having properly instructed them in its management and use. The city demurred to the petition. The demurrer was sustained, and the petition dismissed. On error the judgment was affirmed by the circuit court.

The record presents the simple question whether a municipal corporation is liable in damages to one injured by the negligent acts of the members of its fire department engaged in the use of its apparatus, whether in the extinguishment of fires or otherwise. The question has generally, if not universally, been answered in the negative. 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 they 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. ‘It is obvious,’ says Gholson, J., in Western College of Homeopathic Medicine v. City of Cleveland, 12 Ohio St. 375, 377, ‘that there is a distinction between those powers delegated to municipal corporations to preserve the peace and protect person and property, whether to be exercised by legislation or the appointment of proper officers, and those powers and privileges which are to be exercised for the improvement of the territory comprised within the limits of the corporation, and its adaptation to the purposes of residence and business. As to the first, the municipal corporation represents the state,-discharging the duties incumbent on the state; as to the second, the municipal corporation represents the pecuniary and proprietary interests of individuals. As to the first, responsibility for acts done or omitted is governed by the same rule of responsibility which applies to like delegation of power; as to the second, the rules which govern the responsibility of individuals are properly applicable.’ In this case it was sought to make the city of Cleveland liable for having neglected its duty in not preventing the destruction of the property of the plaintiff by a riotous assemblage of persons. But in the subsequent case of Wheeler v. City of Cincinnati, 19 Ohio St. 19, the suit was for the recovery of damages against the city for having neglected to make proper provision for the extinguishment of fires, whereby the plaintiff's property was destroyed. The court, however, held that the duty of the city in this regard fell within the category of the public duties of the city, and that there was no liability. Speaking of the powers conferred on municipal corporations for the extinguishment of fires, the court said: ‘The powers thus conferred are in their nature legislative and governmental. The extent and manner of their exercise, within the sphere prescribed by statute, are necessarily to be determined by the judgment and discretion of the proper municipal authorities, and for any defect in the execution of such powers the corporation cannot be held liable to individuals. Nor is it liable for a neglect of duty on the part of fire companies, or their officers, charged with the duty of...