Canade, Inc. v. Town of Blue Grass

195 N.W.2d 734, 1972 Iowa Sup. LEXIS 783

• Court: Supreme Court of Iowa
• Decided: March 16, 1972
• Docket: 54687
• Status: Published

Opinions

LeGRAND, Justice.

This is an appeal from two orders sustaining motions for summary judgment in favor of each of the two defendants. We affirm the trial court.

The Town of Blue Grass, a municipal corporation, maintains a volunteer fire department under the provisions of chapter 368, The Code, 1966. Defendant Paul Ehrecke was the captain in charge of the fire detail on the night of the events in question. Plaintiff is a corporation operating a trailer park near the Town of Blue Grass. One of the buildings on plaintiff’s property houses equipment and other items of personal property for the use and convenience of its tenants.

As permitted by section 368.11, defendant town had undertaken to furnish fire protection to certain persons outside the corporate limits for an agreed fee. Plaintiff was not one of the subscribers for this service, although it had been unsuccessfully negotiating with the town over price for some time.

On February 22, 1967, a fire broke out in this building and the Blue Grass Volunteer Fire Department was called to extinguish the blaze. Upon reaching the scene, defendant Ehrecke determined plaintiff was not one of its subscribers. He thereupon ordered the department to withdraw its equipment, leaving the scene without attempting to extinguish the blaze. Another department from a neighboring town was then called and eventually the fire was brought under control. In the meantime, however, considerably more damage resulted than would have occurred had the Blue Grass Fire Department acted when first arriving on the scene.

Plaintiff’s petition is in two counts. The first alleges implied contract to extinguish this fire. Count II alleges negligence on the part of the town’s fire department in failing to use its best efforts to fight the fire.

Answer was filed by each defendant. Interrogatories were requested by both plaintiff and defendants, and answers were filed. Thereafter both the Town of Blue Grass and defendant Ehrecke filed motions for summary judgment under rule 237, Rules of Civil Procedure, on the ground of governmental immunity. The motions alleged that, the Town and its firemen were engaged in a governmental function at the time of the acts in question and that therefore no liability can attach for negligence in its performance.

This matter arose prior to the enactment of chapter 613A, The Code, 1971, and must be decided on the law as it existed prior to the adoption of that statute.

One other matter should be mentioned. Although plaintiff alleged both negligence and breach of contract, the motion for summary judgment was based, argued, and decided solely on the negligence issue. It was also presented on appeal in that manner. Our consideration is limited accordingly, and we assume plaintiff abandoned any claim it was entitled to recovery on a breach-of-contract theory. Gorman v. Adams, 259 Iowa 75, 79, 143 N.W.2d 648, 650 (1966).

There is little difference between the parties. They agree the town is not responsible for negligence of its fire department under the then existing rule of governmental immunity. 57 Am.Jur.2d, Municipal Tort Liability, section 265, page 227; 63 C.J.S. Municipal Corporations § 776, page 81; 18 McQuillin, Third Ed., Municipal Corporations, section 53.30, page 271; Bradley v. City of Oskaloosa, 193 Iowa 1072, 1073, 1074, 188 N.W. 896, 897 (1922); Miller Grocery Co. v. City of Des Moines, 195 Iowa 1310, 1313, 192 N.W. 306, 307 (1923).

Plaintiff, however, insists this case falls within the so-called “dual capacity” decisions, holding a city may sometimes be exercising governmental functions and sometimes proprietary ones in the use of the same property or equipment. See Brown v. City of Sioux City, 242 Iowa 1196, 1205, 49 N.W.2d 853, 858 (1951) and Miller Grocery Co. v. City of Des Moines, supra, 195 Iowa at 1313, 192 N.W. at 307.

This argument concedes the town would not be liable for the negligent failure to extinguish a fire within the town limits; but, plaintiff urges, the town forfeits its immunity when it leaves the corporate limits and fights fires for others on a for hire basis.

We believe section 368.11, The Code (1966), disposes of this claim. That section is in part as follows:

“368.11 Fire protection. [Municipal corporations] shall have power to provide for the protection of life and property against fire and to establish, house, equip, staff, uniform and maintain a fire department. They may establish fire limits. They may consistent with code standards promulgated by nationally recognized fire prevention agencies regulate the storage, handling, use, and transportation of all inflammables, combustibles, and explosives, within the corporate limits, and inspect for and abate fire hazards. They may provide conditions upon which the fire department will answer calls outside the corporate limits and outside of the territorial jurisdiction and bovmdary limits of the state of Iowa, and the corporation shall have the same governmental immunity as when operating within the corporate limits. * * *”

(Emphasis supplied.)

Under this statuate the town is afforded the same immunity for any negligence of its fire department whether allegedly committed within or beyond the corporate limits. The dual-capacity cases, even if otherwise applicable, would not supersede this statutory extension of governmental immunity.

While we have not heretofore considered this problem, other courts have adopted the rule above stated. 18 McQuillin, Municipal Corporations, Third Ed., section 53.52, page 271; Eulrich v. City of Clintonville, 238 Wis. 481, 300 N.W. 219, 222, 223 (1941); Banks v. City of Albany, 83 Ga. App. 640, 64 S.E.2d 93, 95, 96 (1951); Bagwell v. Gainesville, 106 Ga.App. 367, 126 S.E.2d 906, 907 (1962); Indianapolis v. Butzke, 217 Ind. 203, 26 N.E.2d 754, 755, supp. opinion 27 N.E.2d 350 (1940); Valevais v. New Bern, 10 N.C.App. 215, 178 S.E.2d 109, 112, 113 (1970).

The principle is stated in 63 C.J.S. Municipal Corporations § 776(b), page 84, this way:

“* * * a municipality is not liable for destruction of property by fire due to the negligence of firemen in leaving before the fire was completely extinguished where a statute provides that a city or village contracting to provide fire protection and the services of its fire department outside of its boundaries shall be subject to the same liability for property damage as when providing the same services within its municipal limits, and there would have been no liability on the part of the city if the fire in question had occurred under like circumstances within the municipal limits.”

While our discussion has been limited to the town’s liability, plaintiff does not argue defendant Ehrecke is liable in the event the town is not. Hence we give no consideration to that question.

The summary judgment as to each defendant is affirmed.

Affirmed.

All Justices concur, except REYNOLD-SON and BECKER, JJ., who dissent and HARRIS, J., who takes no part.