Irvine v. City of Chattanooga

• Citation: 47 S.W. 419,101 Tenn. 291
• Parties: IRVINE et ux. v. MAYOR, ETC., OF CHATTANOOGA.
• Decision Date: 03 October 1898
• Court: Supreme Court of Tennessee

47 S.W. 419

101 Tenn. 291

IRVINE et ux. v. MAYOR, ETC., OF CHATTANOOGA.

Supreme Court of Tennessee.

October 3, 1898

Appeal from circuit court, Hamilton county; Floyd Estell, Judge.

Action by John J. Irvine and wife against the mayor and aldermen of the city of Chattanooga. Judgment for defendant. Plaintiffs appeal. Affirmed.

Richmond Chambers & Head, for appellants.

Case & Case, for appellee.

McALISTER J.

The object of this suit is to hold the city of Chattanooga liable for the loss of a dwelling house by fire, which it is alleged to have occurred in consequence of the negligence and inefficiency of the fire department. The fire occurred about 10 o'clock on the morning of June 26, 1896, and the dwelling was totally destroyed. It originated in the roof near the chimney, and as soon as it was discovered the plaintiff turned in an electrical alarm to fire hall No. 2 situated about two blocks distant. The fire department having failed to respond, a general alarm was given to all the fire halls in different portions of the city, but there was still no response. Plaintiff then undertook to reach the department by telephone, but was unsuccessful. In the meantime the fire had slowly spread to other parts of the building, and, notwithstanding the utmost exertions on the part of plaintiff, the house was totally destroyed. It seems reasonably certain from this record that if the fire company at hall No. 2 had responded the flames could have been arrested, and the property saved. The failure of the fire department to respond was due to the fact that on that morning it had been ordered on parade duty to attend the funeral of the city physician, which occurred about two miles distant from plaintiff's property, and in an opposite part of the city. A demurrer was interposed on behalf of the city, which was sustained by the circuit court, and plaintiff's suit dismissed.

The principal assignment of demurrer was that the duty to extinguish fires is a public, and not a corporate, one, and the city is not liable for the negligent failure of its officers, agents, and servants to extinguish fires. The general rule is that the neglect of duty for which an action will lie against a municipal corporation must be a plain absolute duty, which pertains to the corporation as such, and from which it is to derive special benefit in its corporate capacity, and not merely such duties as it exercises for the benefit of the public. 2 Dill. Mun. Corp. § 976 et seq. Says Judge McFarland in Mayor, etc., v. Kimbrough, 12 Heisk. 133, viz.: "A municipal corporation is, upon the principle of respondeat superior, liable for the negligence of its officers and agents in the exercise of that class of powers conferred upon it, not for public purposes only, and as pertaining to its functions as a local government exercising in that aspect a position of the sovereign power of the state, but for its own corporate advantage and immediate emolument." It has been held in this state, upon the principle just stated, that no action lies against a city for the acts of its police officers, such as an assault and battery in the arrest of an offender or the...