Hayes v. City of Oshkosh

33 Wis. 314

• Court: Wisconsin Supreme Court
• Decided: June 15, 1873
• Status: Published

Opinion

Dixon, C. J.

The question presented in this case is settled by authority as fully and conclusively as any of a judicial nature can ever be said to havé been. The precise question may not have been heretofore decided by this court, but a very similar one has, and the governing principle recognized and affirmed. Kelley v. Milwaukee, 18 Wis., 83. Neither the charter of the city of Oshkosh, nor the general statutes of this state, contain any peculiar provision imposing liability in cases of this kind; and the decisions elsewhere are numerous and uniform, that no such liability exists on the part of the city. The case made by. the plaintiff is in no material respect distinguishable from those adjudicated in Hafford v. New Bedford, 16 Gray, 297, and Fisher v. Boston, 104 Mass., 87, as well as in several other reported decisions cited in the briefs of counsel, and in all of which it was held that the actions could not be maintained.

The grounds of exemption from liability, as stated in the authorities last named, are, that the corporation is engaged in .‘the performance of a public service, in which it has no partic-jular 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; that the members of the fire department, although appointed by the city corporation, are not, when acting in the discharge of their duties, servants or agents in the employment of the city, for whose conduct the city can be held liable; but they act rather as public officers, or officers of the city charged with a public service, for whose negligence or misconduct in the discharge of official duty no action will lie against tbe city, unless expressly given; and hence the maxim respondeat superior has no application.

The reasons thus given are satisfactory to our minds, and lead to a conclusion which on the whole seems to us to be just and proper. Individual hardship or loss must sometimes be endured in order that still greater hardship or loss to the'public at large or the community may be averted. It would seem to be a hard rule which would hold the city responsible in damages in such cases, when the work in which it, or rather its public officers are engaged, is one of mere good will, a charity, so to speak, designed for the relief of suffering members of the community, or it may be of the entire people of the district. If the legislature sees fit to enact such liability, so let it be; but, in the absence of such enactment, we must hold the liability does not exist.

By the Court. — Judgment affirmed.