Schumacher v. City of Milwaukee

• Decision Date: 21 June 1932
• Citation: 243 N.W. 756,209 Wis. 43
• Parties: SCHUMACHER v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

209 Wis. 43

243 N.W. 756

SCHUMACHER

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

June 20, 1932.

Dissenting Opinion June 21, 1932.

Appeal from a judgment of the Circuit Court of Milwaukee County; Walter Schinz, Circuit Judge.

Action by Max Schumacher and others against the City of Milwaukee and others. From the judgment for named plaintiff, defendants appeal.--[By Editorial Staff.]

Affirmed.

Action begun July 11, 1929; judgment entered July 7, 1931. Personal injury. The plaintiff was the guest of his brother, Hyman, who was on the night of May 17, 1929, driving a Chevrolet truck southeasterly on Teutonia avenue. A fire apparatus truck at the time was traveling west on Capitol drive. These streets intersect. The lights were with the Chevrolet truck, which entered the intersection and was struck by the fire truck. As a result of the collision, plaintiff sustained severe injuries which confined him to the hospital for about two weeks, since which time he has suffered from subjective symptoms of headaches, dizziness, irritability, and restlessness.

Upon the trial the jury found that the driver of the fire truck was guilty of a want of ordinary care in respect to the speed of the fire truck, in respect to his control thereof and in respect to lookout, and, in response to other questions, the jury found facts sufficient to make the defendant liable for the negligent conduct of its agents and servants. The jury acquitted the driver of the Chevrolet truck and the plaintiff of contributory negligence. The jury also found in respect to damages sustained by the owner of the Chevrolet truck, Morris Schumacher, by Bennie and Ida Schumacher, the parents of Hyman Schumacher, who was killed in the accident, and assessed the plaintiff's damages at $10,000. The judgments in favor of Bennie and Ida Schumacher and Morris Schumacher, the owner of the truck, were paid and satisfied. The defendant city appeals from the judgment in favor of the plaintiff, Max Schumacher.

OWEN and FAIRCHILD, JJ., dissenting.

Shaw, Muskat & Sullivan, Max Raskin, City Atty., and Joseph L. Bednarek, Asst. City Atty., all of Milwaukee, for appellants.

Rubin & Zabel, of Milwaukee (W. B. Rubin, of Milwaukee, of counsel), for respondent.

ROSENBERRY, C. J.

The first proposition urged upon our attention here is that the city of Milwaukee, having been engaged by its servants in the performance of a governmental function, is not liable. Engel v. Milwaukee, 158 Wis. 480, 149 N. W. 141, and cases cited. Such is undoubtedly the law. A new section, section 66.095, was added to the statutes by the 1929 Legislature. It reads as follows: “Any person,firm or corporation suffering any damage proximately resulting from the negligent operation of a motor vehicle owned and operated by any city, and which damage is occasioned by the operation of such motor vehicle in the performance of municipal business, may in the manner and form and within the time provided in section 62.25, file a claim therefor against such city and the common council of such city shall have the right to allow, compromise, settle and pay the same. In the event such claim is disallowed, the claimant may then institute an action therefor against such city pursuant to the provisions of section 62.25.”

[1] It is contended by the defendant city, however, that this section creates no right of action against the city; that it merely confers upon the common council of the city a right, in the exercise of its discretion, to allow and pay claims of the nature described in the section. It is argued that, because the language of this section does not conform to the language of section 81.15, which creates liability of municipalities for defective highways, it must have been the clear intention of the Legislature not to create liability but merely to confer power to act. As to trucks operated by a city in its proprietary capacity, the statute had no effect. The city was liable for the negligence of its servants in such operations. The statute can apply only in cases where the city is engaged by its servants in the discharge of a governmental function. If the contention of the city be sound, the right of the claimant to institute an action against the city pursuant to the provisions of section 62.25 would be meaningless. Certainly no action would lie unless the liability were absolute. No court could review a merely discretionary act of the common council. Therefore an appeal, if no liability was created, would be a futile and nugatory thing.

[2][3] It is true that statutes in derogation of the common law are to be strictly construed, but that does not mean that the court is to struggle to defeat the purpose of the Legislature. While language might have been used which was more definite and certain, construing the act as a whole, having reference to the law as it was at the time the act was passed, it is considered that the clear legislative intent and purpose was to create a liability on the part of the city in favor of those who were injured by the negligent operation of vehicles owned and operated by the city in the discharge of a governmental function as well as in its proprietary capacity. If municipal business was not intended to include business transacted in the performance of a governmental function, then the section amounts to nothing, because as to the nongovernmental acts the city was already liable when it acted in a proprietary capacity.

It is next urged that the damages are excessive. We have carefully reviewed the evidence, and we find no grounds upon which the verdict may be disturbed in that regard.

[4] It is next urged that the court erred in excluding evidence which was offered to show the meaning of the term “answering a fire alarm” as that term is used in section 85.16 (3), 1927 stats., which exempts police officers and others from speed limitations and highway traffic regulations in certain cases. Among other things, it is provided that “all members of fire departments shall likewise be exempt while going to a fire or answering a fire alarm.” In this case the truck had been driven to the point indicated by the alarm; the fire was of no consequence. The defendant sought to show that, according to the regulations of the fire department, answering a fire alarm included taking the equipment out and all things done in response to the alarm until the equipment was returned to its place. If such a regulation exists in the Milwaukee fire department, it would hardly control courts in the determination of the legislative...