Sutter v. Underwriters

• Decision Date: 07 December 1915
• Citation: 161 Wis. 615,155 N.W. 127
• Parties: SUTTER v. MILWAUKEE BOARD OF FIRE UNDERWRITERS.
• Court: Wisconsin Supreme Court

161 Wis. 615

155 N.W. 127

SUTTER

v.MILWAUKEE BOARD OF FIRE UNDERWRITERS.

Supreme Court of Wisconsin.

Dec. 7, 1915.

Appeal from Circuit Court, Milwaukee County; Franz C. Eschweiler, Judge.

Action by Harry F. Sutter, administrator, against the Milwaukee Board of Fire Underwriters. From an order overruling a demurrer, defendant appeals. Affirmed.Otjen & Otjen, of Milwaukee, for appellant.

Quarles, Spence & Quarles, of Milwaukee (I. A. Fish, of Milwaukee, of counsel), for respondent.

TIMLIN, J.

To a complaint averring that the defendant is a corporation organized and existing under and by virtue of chapter 146, Laws of 1872, chapter 73, Laws of 1876, and sections 1923, 1924, 1925, R. S. 1898, and containing by attached exhibits the articles of incorporation, by-laws, and rules of the defendant, and also an averment in sufficient form that one of defendant's employés in discharge of the duties of such employment negligently caused the death of plaintiff's intestate, the defendant demurred. The demurrer was overruled and this appeal from the order followed.

Section 1922, Stats., authorizes any three or more agents or underwriters lawfully doing the business of fire insurance in any city to become incorporated as a board of underwriters under the general incorporation laws of this state for the usual purposes for which such boards are established. This board is permitted to establish a fire patrol in any city wherein it is located. The patrol is under the control of the board. It is made the duty of the patrol, “to discover and prevent fires, and to save and preserve life and property at and after fires.” The patrol has the right to enter any building on fire or which may be in danger of taking fire from other burning buildings, subject to the control of the chief of the fire department of the city. The corporation may impose an assessment on its members to pay the expenses of maintaining said patrol. Sections 1923, 1924, and 1925, Stats. The defendant is such a corporation.

[1][2] The first contention of appellant's counsel is that defendant is a municipal corporation. The argument in support of this is more erudite and interesting than convincing. It should be borne in mind that the meanings of words change with time. Archaic definitions, except when they relate to obsolete words or words from dead languages, which words are no longer in popular use are of little value in arriving at the meaning of modern statutes, and such definitions may be very misleading. A municipal corporation in Wisconsin to-day is of the kind mentioned in article 11 of our Constitution. The words now mean a body corporate consisting of the inhabitants of a designated area created by the Legislature with or without the consent of such inhabitants for governmental purposes possessing local legislative and administrative power, also power to exercise within such area so much of the administrative power of the state as may be delegated to it and possessing limited capacity to own and hold property, and to act in purveyance of public conveniences. It seems obvious that the defendant is not such a corporation.

[3][4] The defendant further contends that if the corporation is not a municipal corporation it is a charitable corporation, and therefore not responsible for the negligence of its servants carrying out the public duty of saving life and property at a fire. It is to be observed, however, that only persons who have, directly or as representatives of others, a pecuniary interest in saving property and in preventing the spread of fire, are eligible as members of this corporation. Their work and that of their servants, while it advances their private interest, also advances the public interest. This is not an unusual concomitant of selfish acts as a little reflection will show. The defendant is clearly not a charitable corporation because it is not organized under chapter 91, Stats. 1913, which provides for the organization of charitable corporations. Corporations whose functions are apparently charitable may also, it is true, be organized under section 1771, Stats. Neither is it a business corporation performing charitable duties. This corporation is not interested in saving...