Piper v. City of Madisow

122 N.W. 730, 140 Wis. 311

• Court: Wisconsin Supreme Court
• Decided: October 5, 1909
• Status: Published

Opinion

Siebeckee, T.

Under legislative authority tbe city has voluntarily constructed a system of waterworks for public and private use. Tbe revenue derived from sales of water for private use is applied to the cost of construction, operation, and. maintenance of tbe waterworks. Tbe business is in charge of a board of commissioners, who employ a superintendent and such other agents and servants as are required for tbe conduct of this part of the municipal business. Tbe plaintiffs bring this action to_ recover damages to tbeir property which they allege were caused by tbe negligence of tbe city through its agents and servants employed by tbe city in conducting tbe business of tbe waterworks department. Under tbe alleged facts tbe employees in charge of this municipal department represent tbe city and act for it. Tbe errors assigned involve an inquiry as to the extent to wbicb the city is responsible for tbe acts of its agents' and servants in the' conduct of this municipal enterprise.

In bis treatise on tbe Law of Municipal Corporations Mr. Dillon states:

“Municipal corporations . . . possess a double character: tbe one governmental, legislative, or public; tbe other, in a sense, proprietary or private. ... In its governmental or public character tbe corporation is made, by tbe state, one of its instruments, or tbe local depositary of certain limited and prescribed political powers, to be exercised for tbe public good on behalf of the state rather than for itself. . . . But in its proprietary or private character tbe theory is that tbe powers are supposed not to be conferred, primarily or chiefly, from considerations connected with tbe government of the' state at large, but for tbe private advantage of tbe compact community which is incorporated as a distinct legal personality or corporate individual; and as to such powers, and to property acquired thereunder, and contracts made with reference thereto, tbe corporation is to be regarded quoad hoc as a private corporation, or at least not public in tbe sense that tbe power of tbe legislature over it or tbe rights represented by it is omnipotent.” 1 Dill. Mun. Corp. § 66 (39). Hayes v. Oshkosh, 33 Wis. 314; Mulcairns v. Janesville, 67 Wis. 24, 29 N. W. 565; Folk v. Milwaukee, 108 Wis. 359, 84 N. W. 420.

Tbe function of a city in selling and distributing water to its citizens is of a private nature, voluntarily assumed by it for tbe advantage of tbe people of tbe city. Responsibility for tbe acts of persons representing it in such a business falls upon tbe city through the relation of master and servant, and the maxim of respondeat superior applies. Whenever this relation is established the city is liable in damages for the negligence of its agents and servants in the conduct of such business. The following adjudications uphold this liability upon the ground'that the city in conducting such a business is acting in its proprietary capacity: Lynch v. Springfield, 174 Mass. 430, 54 N. E. 871; Hourigan v. Norwich, 77 Conn. 358, 59 Atl. 487; Chicago v. Selz, Schwab & Co. 202 Ill. 545, 67 N. E 386; Bullmaster v. St. Joseph, 70 Mo. App. 60; Philadelphia v. Gilmartin, 71 Pa. St. 140.

The fact that the city may also use the waterworks for protection against fire does not relieve it from liability for negligent acts of its servants or agents in the conduct of this-business, except for such acts as are performed by them in the actual work incident to extinguishing fires. Chicago v. Selz, Schwab & Co., supra.

In submitting this case to the jury the court held that in conducting the business of distributing and selling water the-city is exercising a public function, and its officers and agents in conducting the business are in the exercise of gwisi-judicial authority, and if they exercise their judgment and discretion in good faith the city is not liable for damages resulting from their negligent acts. This was error, because the city in this case was acting in its private or proprietary capacity, and it is therefore liable for the negligent acts of its servants or agents. A new trial must be awarded.

By the Court. — Judgment reversed, and the cause remanded to the trial court for a new trial.