Perkins v. City of Lawrence

• Decision Date: 09 April 1955
• Docket Number: No. 39566,39566
• Citation: 177 Kan. 612,281 P.2d 1077
• Parties: A. A. PERKINS, Plaintiff-Appellant, v. The CITY OF LAWRENCE, Kansas, a Municipal Corporation, Defendant-Appellee.
• Court: Kansas Supreme Court

Page 1077

281 P.2d 1077

177 Kan. 612

A. A. PERKINS, Plaintiff-Appellant, v. The CITY OF LAWRENCE, Kansas, a Municipal Corporation Defendant-Appellee.

No. 39566.

Supreme Court of Kansas.

April 9, 1955.

Rehearing Denied May 12, 1955.

Syllabus by the Court.

Following the rule announced in Rhodes v. City of Kansas City, 167 Kan. 719, 208 P.2d 275, it is held:

'It is a general rule of law in this state that municipality is not liable, in the absence of statute imposing liability, for the wrongful acts of city officials or employees, performed in the execution of governmental functions.

'In the maintenance and operation of its fire department a city is acting in its governmental capacity, and is not liable in damages for negligence of its officers or employees in the performance of their duties pertaining to the fire department.'

A. A. Perkins, Lawrence, argued the cause and was on the briefs pro se.

Charles D. Stough, Lawrence, argued the cause and was on the briefs for defendant-appellee.

SMITH, Justice.

This is an action for damages alleged to have been sustained when gasoline alleged to have been negligently spilled in the street by three of defendants was negligently ignited by an employee of the defendant city and plaintiff's automobile was destroyed. The demurrer of the defendant city to the petition was sustained. Plaintiff has appealed.

The petition named as defendants The City of Lawrence, the fire chief, a fireman and three other corporate and personal defendants. It alleged the incorporation of Lawrence; the official capacity of the firemen; that Powell operated as the Powell Construction Company; that Parker operated the Parker Buick Company in Lawrence and that the Standard Oil Company was a corporation; that Parker's Standard Oil Service Station, located at 700 New Hampshire Street, was under the joint control of the Parker Buick Company and the Standard Oil Company on January 30, 1952; that they were engaged in removing gasoline storage tanks from the ground, pursuant to a contract between them; that plaintiff's automobile was parked nearby in the street; that defendants, Standard Oil Company, Parker Buick Company and Powell Construction Company negligently spilled large quantities of gasoline onto the street along the curbings and it accumulated under cars especially plaintiff's car, creating a dangerous hazard for the lives and property of the public; the fire department of the city was called and Fireman Bowen at the direction of Chief Ingels negligently touched a cigarette lighter to the surface of the street, causing gasoline fumes to burst into flame and destroying plaintiff's automobile; that the spilling of the gasoline and its spreading created a dangerous condition and the destruction of plaintiff's automobile was the direct result of the negligence stated.

The petition then set out four particulars in which the three companies were negligent and alleged the city's fire department was negligent as follows:

'(a) City of Lawrence's Fire Department's Firechief's telling a Fireman to touch a cigarette lighter to the ground when the City of Lawrence's Fire Department's Firechief knew or should have known that the gasoline fumes and the gasoline were present and would easily ignite and result in a fire that would damage and did damage the property of others, and this plaintiff's in particular.

'(b) City of Lawrence's Fire Department's Firemen's following such a notion of the City of Lawrence's Fire Department's Firechief's and actually 'playing with fire' in such a manner, i. e., in touching a cigarette lighter to the ground.

'(c) Failing to exercise a high degree of care when working with a highly combustible and inflammable product such as gasoline when they knew or should have known that gasoline was easily ignited and that when ignited could thereby endanger the lives and the property of the public.

'(d) City of Lawrence's Fire Department's standing idly by in confusion, amazement, and disregard and permitting plaintiff's automobile to be destroyed by flames they had thus engendered; while the City of...