Moses v. City and County of Denver

• Decision Date: 16 November 1931
• Docket Number: 12516.
• Citation: 5 P.2d 581,89 Colo. 609
• Parties: MOSES v. CITY AND COUNTY OF DENVER.
• Court: Colorado Supreme Court

5 P.2d 581

89 Colo. 609

MOSES v. CITY AND COUNTY OF DENVER.

No. 12516.

Supreme Court of Colorado

November 16, 1931

In Department.

Error to District Court, City and County of Denver; J. C Starkweather, Judge.

Action by W. B. Moses against the City and County of Denver. From an adverse judgment, plaintiff appeals.

Affirmed.

E Clifford Heald, of Denver, for plaintiff in error.

Thomas H. Gibson, Boswell F. Reed, and Karl C. Brauns, all of Denver, for defendant in error.

CAMPBELL J.

The plaintiff Moses was injured and his automobile destroyed in a collision on a public street in the city and county of Denver with a motor vehicle belonging to the fire department of the municipality, which, at the time, was being driven by one of its employees, and in its business. To the complaint alleging the foregoing facts, the defendant filed a general demurrer which the court sustained, and dismissed the action.

The question for decision is whether the city is liable for the alleged injury. Counsel for plaintiff, in the beginning of his argument on the law of the case, admits that the greater number of cases in the United States support the proposition that the city, in the maintenance and operation of a fire department, does so in the exercise of its governmental functions, to the extent that it is in nowise liable for injuries to others caused by negligence of its employees in using its fire extinguishing equipment. Nevertheless, counsel says that some respectable courts have held a municipality liable for the negligence of its servants in the operation of its fire department in cases wherein the facts are closely analogous to the facts in this case.

Our examination of the pertinent authorities satisfies us that the judgment of the trial court was right, and must be affirmed. Plaintiff's chief reliance is upon Maxwell v. Miami, 87 Fla. 107, 100 So. 147, 33 A.L.R. 682, and Fowler v. City of Cleveland, 100 Ohio St. 158, 126 N.E. 72, 9 A.L.R. 131. The Florida case apparently sustains the plaintiff in his contention. The Fowler Case from Ohio however, has been expressly overruled by the Supreme Court of Ohio in Aldrich v. Youngstown, 106 Ohio St. 342, 140 N.E. 164, 27 A.L.R. 1497.

In 43 C. J. § 1746, p. 967, it is said: 'The power to organize and maintain a fire department for the prevention of damage by fire is a public or governmental function, and a municipality will not ordinarily be liable unless the statute so provides, for the wrongful or negligent acts or omissions of the department or its employees in the performance of their duties, either in the actual work of extinguishing fires, or in otherwise discharging their functions as firemen, * * * or, generally where persons on the public streets are injured by the negligence of firemen driving vehicles employed in the fire department.' A large number of cases are cited to this statement. In Veraguth v. City of Denver, 19 Colo.App. 473, 76 P. 539, Mr. Justice Thomson, in commenting upon the argument of the plaintiff in that case respecting the liability for the injury sustained by him, that a municipality, like a private corporation or individual, is answerable for the consequences of its negligence, at page 476 of 19 Colo. App., 76 P. 539, 540, said: 'The argument recognizes no distinction between the classes of powers conferred upon municipal corporations, and for a neglect in the exercise of any of their powers would hold them to the same degree of responsibility, regardless of the nature of the power to be exercised. But a distinction nevertheless exists, and by that distinction the question, in a given case, of the liability of a municipality, is controlled. One class of its powers is of a public and general...