Manske v. City of Milwaukee

101 N.W. 377, 123 Wis. 172, 1904 Wisc. LEXIS 224

• Court: Wisconsin Supreme Court
• Decided: November 15, 1904
• Status: Published

Opinion

Oassoday, O. J.

We are constrained to agree with counsel -for the plaintiff that at the time of the injury the defendant Brown was acting within the scope of his employment. The important question presented is whether the city is liable for 'his alleged careless and negligent conduct while so acting. 'The common council of the city was empowered to establish •a fire department, and “to purchase fire engines and other •fire apparatus, and to organize a fire department, composed ■of a chief engineer, one or more assistant engineers, and such ■other officers and men as shall be required and employed in the management and conduct of such fire engines and apparatus, and to establish rules and regulations for such department;” and also power to purchase material, and equip and run such department, including the power to employ the ■officers and men specifically named, “and all other necessary 'help.” Subch. XIV of the charter [ch. 184, Laws of 1874], and particularly secs. 3 and 4. Of course, the common council not only had the powers thus expressly granted, but also ■such other powers as might be necessary or convenient to ■carry into execution the powers thus expressly granted. Gilman v. Milwaukee, 61 Wis. 592, 21 N. W. 640, and cases there cited. Such powers were sufficient to authorize the purchase of all necessary coal for the fire department, and to transport the same from the docks to the place of use, and to employ all necessary help to do such work. It sufficiently appears from the complaint that Brown was, at the time of the injury, an employee of the city in the fire department. In conducting a fire department, the city, in the language of Chief Justice Dixon, “is engaged in the performance of a public service, in which it has no particular 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.” Hayes v. City of Oshkosh, 33 Wis. 318. That ease followed cases in Massachusetts, where it was held:

“A city is not liable for a personal injury occasioned by the negligence of the members, appointed and paid by the city council, of a fire department established by the city council pursuant to an act of the legislature.” Hafford v. New Bedford, 16 Gray, 297; Fisher v. Boston, 104 Mass. 87.

Such seems to be the general rule. Jewett v. New Haven, 38 Conn. 368; Wilcox v. Chicago, 107 Ill. 334; Robinson v. Evansville, 87 Ind. 334; McFadden v. Jewell, 119 Iowa, 321, 93 N. W. 302, 60 L. R. A. 401; 20 Am. & Eng. Ency. of Law (2d ed.) 1205, and cages there cited; 2 Dillon, Mun. Corp. (4th ed.) § 976. Later cases in this court are to the ■same effect. Kuehn v. Milwaukee, 92 Wis. 263, 65 N. W. 1030; Folk v. Milwaukee, 108 Wis. 359, 84 N. W. 420. Such rule is applicable to the case at bar.

By the Court. — The order of the superior court is reversed, ■and the cause is remanded with direction to sustain the demurrer, and for further proceedings acco. ding to law.