Nashville Trust Co. v. City of Nashville

• Decision Date: 09 June 1945
• Parties: NASHVILLE TRUST CO. et al. v. CITY OF NASHVILLE.
• Court: Tennessee Supreme Court

188 S.W.2d 342

182 Tenn. 545

NASHVILLE TRUST CO. et al. v. CITY OF NASHVILLE.

Supreme Court of Tennessee.

June 9, 1945

Error to Circuit Court, Davidson County; E. F. Langford, Judge.

Suit by the Nashville Trust Company and another, executors and testamentary trustees under the will of Robert H. Wright against the City of Nashville to recover damages for the value of a building destroyed by fire. Judgment of dismissal was reversed by the Court of Appeals and cause remanded, and defendant brings error.

Judgment of Court of Appeals reversed and that of the Circuit Court affirmed.

George H. Armistead, Jr. and Armistead, Waller Davis & Lansden, all of Nashville, for plaintiff Trust Co.

Charles G. Blackard, of Nashville, for defendant City of Nashville.

GREEN Chief Justice.

This suit was brought by Nashville Trust Company and J. F. Ahearn, executors and testamentary trustees under the will of Robert H. Wright, for damages for the value of a building destroyed by fire. It was alleged that the loss was due to negligence of employees of the city in failing to supply water to a sprinkler system installed in the building. The building was insured, the insurance company paid the loss, and the suit is brought for the use of that company.

The trial judge dismissed the suit apparently on the theory that it was an effort to hold the city liable for negligence in the exercise of a governmental function. The Court of Appeals took a different view and reversed the judgment below and remanded the case for a new trial.

The plaintiffs became delinquent in payment of a charge levied by the city with respect to this sprinkler system and the water was cut off. Plaintiffs paid the charge but employees of the city failed to turn back the water before the fire. Plaintiffs' proof tended to show that the fire would have been extinguished without damage to the building had the sprinkler system been in operation.

At a former day of the term we dismissed the suit because the plaintiffs had failed to prove the value of the building. The Court of Appeals recognized this but thought the omission was an oversight, not due to culpable negligence, and consequently awarded a new trial. We granted a petition to rehear because we preferred to dispose of the case on the merits, it appearing that other suits depended on the outcome of this one and because of the representation of counsel that he understood the value of the building to have been conceded.

A demurrer was fild to the declaration by the city raising the point that the city acted in the premises in a governmental capacity. This demurrer was overruled and the city filed a plea to the declaration. The case coming on to be heard later before a different trial judge, he was of opinion that the city's undertaking was governmental in its nature as heretofore stated.

It is first insisted by the plaintiffs that the action of the first judge in overruling the demurrer was conclusive of this particular matter and binding on the second judge at the subsequent trial. This would doubtless be true if the proof after issue joined had sustained the allegations of the declaration. An order overruling the demurrer, however, does not prevent the court from reaching a contrary conclusion after a plea is interposed and proof heard tending to show allegations of the declaration not sustained. The matter is fully discussed by Judge Hughes in Chavin v. Mayor and City Council of Nashville, 1 Tenn.Civ.App. 317. The declaration almost in as many words alleged that a contract existed between the city and the property owners whereby the city agreed to sell the latter water for the sprinkler system at a stipulated charge. The proof showed this was not true.

The ordinances of the City, Sections 77, 78, 93 and 94 in the 1941 Code of Nashville, authorized the city to permit property owners to install and connect sprinkler systems with the city water mains. A service charge of 5¢ per annum per sprinkler head was provided and there were 224 sprinkler heads in this particular building. Authority to enter the premises and inspect the apparatus was reserved to the city. There was no meter on the connection. Under these ordinances a bond is exacted of the owner of the premises so equipped to protect the city from diversion of the water to other uses than fire protection.

We see no contract to sell water about this arrangement and that is now conceded. The charges above mentioned and the bond are exacted whether any water is used or not and the service charge appears to us nothing more than a reasonable charge to cover the cost of inspections. Plainly periodic inspections are necessary to protect the city from diversion of the water and from loss of the water by leaks in a complicated apparatus of this nature. The ordinances were not before the Court, nor had the facts about the arrangement been developed when the demurrer was overruled.

We pass then to the principal question. It is well settled that the undertaking of a municipal corporation to extinguish fires is a public service, not corporate, and the city is not liable for the negligent acts of its agents in respect to such undertaking. Among our cases are Burnett v. Rudd, 165 Tenn. 238, 54 S.W.2d 718; Irvine v. Chattanooga, 101 Tenn. 291, 47 S.W. 419; Foster v. Water Co., 71 Tenn. 42. Such is the law everywhere.

A municipality operating waterworks pursues that activity in a dual capacity. So far as it undertakes to sell water for private consumption the city engages in a commercial venture functions as any other business corporation, and is liable for the negligence of its employees. In so far, however, as the municipality undertakes to supply water to extinguish fires, it acts in a governmental capacity and cannot be held liable for negligence on the part of its employees. Lober v. Kansas City, Mo.Sup., 74 S.W.2d 815; Miller Grocery Co. v. Des Moines, 195 Iowa 1310, 192 N.W. 306, 28 A.L.R. 815; 6 McQuillen, Municipal Corporations, § 2855. All the cases appear to be collected in Lober v. Kansas City just cited, which contains an elaborate review of the authorities.

In authorizing the property owners here to connect a sprinkler system with the water mains, the city had but one object, namely, the prevention of fires. The use of water through this connection was authorized for that single purpose. It does not seem to us that the character of the city's undertaking was altered by the nature of the particular instrumentality to be used for this public purpose.

Whether the city used its own apparatus or used apparatus belonging to the plaintiff to combat a fire did not vary the city's obligation nor liability.

The Court of Appeals expressed the opinion that the city undertook for a...