Naumburg v. City of Milwaukee

• Decision Date: 10 April 1906
• Docket Number: 1,161.
• Citation: 146 F. 641
• Parties: NAUMBURG v. CITY OF MILWAUKEE.
• Court: U.S. Court of Appeals — Seventh Circuit

146 F. 641

NAUMBURG v. CITY OF MILWAUKEE.

No. 1,161.

United States Court of Appeals, Seventh Circuit.

April 10, 1906

Rehearing Denied June 18, 1906.

Charles Friend and A. D. Friend, for plaintiff in error.

Thomas H. Dorr, for defendant in error.

The plaintiff in error filed his complaint in the Circuit Court of the United States for the Eastern District of Wisconsin alleging in substance that he was a citizen of the state of New Jersey, and that the defendant was a municipal corporation having applied for and received its charter from the Legislature of Wisconsin; that within its limits the municipality maintained a certain draw, jackknife, or bascule bridge known as the 'Grand Avenue Bridge,' over the Milwaukee river; that said bridge is and was built and operated so as to allow the passage of boats and vessels along said river; that said bridge is and was divided in the center, so as to have two parts, each of which parts was attached to the abutments at either end of said bridge; that at the points where said parts were attached there were certain mechanical devices and arrangements for raising the parts of the bridge from the center; that said bridge was worked by electricity and was controlled and operated by men employed by and under the direction of the city, known as bridge tenders, all in accordance with the city charter; that defendant had not supplied any guards or warnings at said bridge, but left the approaches unguarded and unsafe; that said bridge was used and provided for the convenience of persons traveling the streets, and at the time of the acts complained of the said bridge and the streets, and at the time of the acts complained of the said bridge and the streets leading thereto were crowded with people going to and from and upon said bridge and streets; that plaintiff was a traveling salesman in the employ of a New York firm, and about 7 o'clock p.m. on September 1, 1903, was traveling along said Grand avenue and approached the bridge for the purpose of crossing over it; that no warning of danger was given to plaintiff by the bridge tender, and no guard or device was put up to warn or caution him of any danger in crossing the bridge; that when he approached the bridge the bridge tender said to plaintiff, 'Come on, you have plenty of time to cross,' and while he was attempting to cross, the bridge tender raised the bridge, and threw plaintiff off, from which he received the injuries complained of; that said injuries were caused by the negligence of the bridge tender, and without any fault on the part of plaintiff. To this complaint the city filed its demurrer for the want of sufficient facts. The demurrer was sustained, and judgment was rendered for the defendant.

The provisions of the city charter which bear upon the question here are as follows: Chapter 9, Sec. 6: 'Draw or swing bridges, with openings sufficient for the passage of vessels shall be maintained and supported at the expense of the city at the following places in said city, to-wit (among other places): From Wisconsin street, in the Third and Seventh Wards, to Grand avenue in the Fourth Ward (the bridge in question). ' Chapter 9, Sec. 5: 'The board of public works shall appoint, subject to the approval of the common council, all bridge tenders, whose number, duties and compensation shall be fixed and determined by the common council. Any bridge tender may be removed at pleasure by the board of public works, or by the mayor. ' Chapter 2, Sec. 1: 'The officers of said city shall be a mayor * * * and as many bridge tenders, firemen, constables, policemen, and such other officers and agents as may be provided by this act, or as the common council may from time to time direct. ' Chapter 15, Sec. 4: 'The mayor and aldermen and the harbor master and bridge tenders of the city * * * shall severally and respectively have and exercise within said city, all the powers of policemen of said city, without any compensation or claim to compensation therefor.'

Before GROSSCUP and BAKER, Circuit Judges, and ANDERSON, District Judge.

After stating the facts above, the opinion of the court was delivered by ANDERSON, District Judge.

The cause of action set forth in the complaint is based upon the negligence of the bridge tender in opening the draw or lift of the bridge, when plaintiff was crossing, whereby the plaintiff was injured, while exercising due care. The sufficiency of the complaint turns upon the question whether the bridge tender was such an agent or servant of the municipality as that the latter is liable for his negligence-- whether the doctrine of respondeat superior applies. The Circuit Court held that the question was one of local law, that under the decisions of the Supreme Court of Wisconsin the opening of the draw was a public or governmental service, and that the doctrine of respondeat superior did not apply.

It is well settled that municipal corporations have a dual character. They are governmental instrumentalities, endowed with powers and duties necessary for the establishment and maintenance of good government within their territory. In the exercise of these powers and discharge of these duties they are political divisions of the state, employed by it as a means through which it may perform the duties that it owes to all citizens alike. But they are more than mere governmental instrumentalities. 'They are incorporated at the wish and special instance of the inhabitants for the advancement of their own private interests,' and 'extensive powers and privileges, which are to be exercised for the improvement of the territory within their limits and for its adaptation to the purposes of business and residence, are conferred upon them. ' While acting in their capacity as governmental instrumentalities they are, like the sovereign power itself, exempt from liability for acts done or omitted, unless such liability is expressly created by statute. On the other hand, when they are acting, not in their public or governmental capacity, but in their municipal or corporate capacity, exercising powers and privileges given them for their own corporate benefit, they are held liable for their acts and omissions in exercising these powers. Williams, Municipal Liability for Tort, Secs. 4, 5, et seq., and authorities cited.

The Supreme Court of Wisconsin has repeatedly recognized and declared this doctrine, with its distinctions. In Hayes v. Oshkosh, 33 Wis. 314, 14 Am.Rep. 760, it was held that a municipality is not liable for the misconduct of its officers or employes when 'the corporation is engaged in the performance of a public service, in which it has no particular interest, and from which it derives no special benefit or advantage in its corporate capacity, but which it is bound to see performed in pursuance of a duty imposed by law for the general welfare of the inhabitants or of the community. ' The defendant city was accordingly held not liable for the negligence of the fire department. In Folk v. Milwaukee, 108 Wis. 359, 84 N.W. 420, it was held that the city was not liable for the death of a child lawfully attending one of its public schools, when such death was caused by negligently allowing the sewer of the school building to become clogged up; and the court there said:

'This court early adopted and has consistently maintained the rule that a municipal corporation is not liable for injuries resulting from the acts or defaults of its officers when it is engaged in the performance of a merely public service, from which it derives no benefit in its corporate capacity, but which it is bound to see performed in pursuance of a duty imposed by law for the general welfare of the inhabitants, or the community'-- citing Hayes v. Oshkosh, supra.

This phase of the rule is illustrated in many other Wisconsin cases. Schultz v. Milwaukee, 49 Wis. 254, 5 N.W. 342, 35 Am.Rep. 779, and Little v. Madison, 49 Wis. 605, 6 N.W. 249, 35 Am.Rep. 793, are illustrations of the doctrine of nonliability in respect to the acts or omissions of police officers. In Kuehn v. Milwaukee, 92 Wis. 263, 65 N.W. 1030, the doctrine was applied to the acts of the board of public works in disposing of the city's garbage; and in Manske v. Milwaukee (Wis.) 101 N.W. 377, it was applied to a case where a person was injured by the negligence of a fireman in loading coal for the fire department. In each of these cases it was held that the municipality was not liable because it was engaged in a public service--was acting in its governmental, and not in its corporate, capacity.

On the other hand, the Supreme Court of that state has held that a municipal corporation is liable for the acts and omissions of its officers and employes engaged in the performance of duties that pertain to the corporate rights and powers of the municipality. In Wallace v. Menasha, 48 Wis. 79, 4 N.W. 101, 33 Am.Rep. 804, it was ruled that the city was not liable for the acts of its treasurer in seizing and selling the property of one person for the taxes of another, and in the course of its opinion the court said:

'We have thus far considered the case upon the hypothesis that the treasurer is the agent or servant of the city, for whose tort the city may, in a proper case, be held liable. But, under the authorities, it may well be doubted whether the rule respondeat superior has any application to acts performed or torts committed by him in the collection of taxes. The levy and collection of taxes are governmental rather than municipal functions, delegated, it is true, to municipal officers for convenience, but still governmental. It may well be claimed that, in the exercise of those functions, such officers are public officers, discharging public and not municipal or corporate duties. If so,

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