Opinion
February 28, 1949.
1. Municipalities — water works — fires.
A municipality in its efforts to extinguish a fire, not set out by it, acts in a governmental capacity and is not liable for the destruction of property by fire even if from negligence in the maintenance of the municipal water works equipment; and it is immaterial that the municipality used the same water system in furnishing water to its citizens for domestic purposes for profit.
Headnote as approved by Roberds, J.
APPEAL from the circuit court of Lowndes County; J.E. CARRADINE, J.
Sams Jolly, for appellants.
It makes no difference for the purpose of this discussion whether it came within the duties of the fire department or the water department of the city to keep the fire plugs of said city in a good state of repair. There was no obligation in the city by statute or otherwise to furnish fire protection to the appellees or to the other inhabitants of the city, no more so than there was an obligation to furnish police protection.
In the case of Hattiesburg v. Geigor, 118 Miss. 676, 79 So. 846, decided by this court in 1918, an employee of the fire department of the city of Hattiesburg brought suit against the city for an injury which he received while in the employ of the city. Plaintiff alleged negligence against the fire chief, for permitting a projecting piece of lumber at the fire station to remain in such a position that the plaintiff was injured while driving under same on his engine. A demurrer was filed to the declaration in the lower court but overruled, and the City of Hattiesburg appealed. The Supreme Court reversed this judgment and gave judgment for the appellant city. The syllabus by the court in that case follows: "City fireman, injured while driving engine from temporary shed to fire barn because of lumber projecting over opening of door of shed, cannot recover against city on ground that fire chief was negligent in housing engine in such shed; that injury having been caused by an act performed in the discharge of a governmental duty for which the city is not liable."
"There are some duties the nature of which as governmental is too well settled to be disputed, such as the establishment and maintenance of schools, hospitals, poorhouses, fire departments, police departments, jails workhouses, and police stations, and the like. In fact, duties connected with the preservation of the peace or health, or the prevention of the destruction of property by fire are all governmental duties, without question, and hence there is no municipal liability for torts in connection therewith, or at least not unless under peculiar circumstances. — 6 McQuillin, Municipal Corporations, pp. 5404-5407. See, also, section 2643, same authority."
In this same case the court quoted from the opinion in Alexander v. City of Vicksburg, 68 Miss. 564, 10 So. 62, which was a case based on alleged negligence of fireman while driving his engine to fire, as follows: "It is held generally, if not universally, by the courts of this country, that in cases of the class to which this belongs, the municipality is not liable, as is abundantly shown by the citations of counsel on both sides, which see."
We take the position that the extinguishment of fires is a governmental function and that the defective fire plug in the case under discussion was just as much a part of the fire department as was the fire chief and the vehicle in which he rode to the fire. The fact that the city water department was engaged in the business of selling water to customers, would not alter this situation because it was not shown in any manner that the appellees paid for water that came from the fire plug to extinguish the fire.
The fact that it was the duty of the water department instead of the fire department to look after and repair the fire hydrants can be of no comfort to the appellees in the case at bar. This was not work for which the water department received compensation. We can see no more liability on the part of the city on account of negligence of its water department, when that department is functioning in the sovereign or governmental capacity, any more so than there can be liability against the city on account of the negligence of the fire department.
It has been held by this court that a private water company under contract with a city to furnish water for its fire department, would not be liable to a citizen for fire loss because of a want of pressure of water. This decision by our court was in the case of Wilkinson v. Light, Heat Water Co. of Jackson, 78 Miss. 389, 28 So. 877. In the syllabus by the court we find the following: "Where the contract of a water company to furnish a city with water for its fire department imposed no public duty on the company, and did not show that it was made for the benefit of the city's inhabitants, in the sense that would enable them to maintain an action thereon, the company was not liable to a citizen for loss by fire by reason of the want of proper pressure of water, since there was no privity of contract between them." The main difference in the case just quoted from, and the case at bar, is that the City Water Department furnished the Columbus Fire Department with water for its fire plugs instead of a private company doing so by contract as in the Wilkinson case. Certainly there was no public duty on the part of the water department of the City of Columbus to the appellee, no more than there was a duty by the private water company to the inhabitants of the City of Jackson.
If the City of Columbus had no fire department at all, certainly the appellees could not have forced the City of Columbus to establish a fire department by injunction or otherwise. Assuming that there was no fire plug at the place where the defective fire plug was in this case, and assuming further that there was no fire plug in the vicinity, certainly the appellees could not have maintained an action against the city for failing to provide fire plugs at that place or any other place.
We submit that the fire plug was a part of the equipment of the City of Columbus in its governmental or sovereign capacity as much so as the fire truck or one of its police cars. We submit that if the appellees are permitted to recover in this case by a decision of this court, that thereby the City of Columbus would be made the insurer of all its inhabitants and that any fire causing damage in the City of Columbus to any of its inhabitants and that any fire causing damage in the City of Columbus to any of its inhabitants would render the City liable.
H.T. Carter, for appellees.
We recognize the law to be in Mississippi that a municipal corporation is not liable in tort for damages when acting strictly in its sovereign or governmental capacity but we realize and know the law to be that a municipality is liable in tort for damages when it acts in its private or corporate capacity the same as any other corporation would be liable under like circumstances and we further know that the courts of Mississippi have held that when a municipality comingles and mixes its governmental duties and its corporate duties that the courts will not unscramble their mixed relations and the municipality will have to abide by the consequences. In this case it was shown conclusively that the Water Department maintained the sewers, the drains, the conduits, and also the fire hydrant and that on the same day that they worked on sewer drains, conduits and other water facilities, they likewise worked on the fire hydrant, and it was also shown that the Water Department assumed full responsibility for the maintenance and up keep of the fire hydrant and that the Fire Department of the City had nothing whatsoever to do with them and that it was the Water Department's duty to flush the hydrants, repair the hydrants and notify the Fire Department of any defective conditions they found. It was also shown that the same water which flowed through the mains also flowed through the fire hydrants and that the fire hydrants were a part of the water system of said city.
In the recent case of The City of Meridian, et al. v. Beeman, 166 So. 757, this court among other things said when a similar question was raised about a policeman whose duties were governmental and corporate. In this case a city policeman was charged with both governmental and corporate duties, his corporate duties being to inspect the bridges, culverts, sewers, drain pipes, streets, and side walks. The policeman was proceeding along a street in the City of Meridian and a dog suddenly ran in front of his car and he looked back to see if he had hit the dog and when he did his automobile struck Mr. Beeman. The City of Meridian raised the same question on their appeal in that case as the appellants have raised on the appeal in this case, that is, that the city was not liable for the negligence of any of its municipal officers, agents or employees while engaged in the performance of governmental functions or duties and it was conceded that police duties are purely governmental, but appellees in that case showed that the city had charged the policeman with corporate duties as well as governmental duties, and the court said: "With no more facts shown in this case, namely, that the policeman at the time of the injury and damage was simply proceeding along his beat in a police car, the court should not be called upon to attempt the technical tasks of `unscrambling the mixed relations' in which the city has placed itself in regard to the duties of its police officers in view of the ordinances above mentioned. See also Bell v. Pittsburgh, 297 P. 185, 146 A. 567, 64 A.L.R. 1542.
The majority of the court is of the opinion that the better and fairer rule is that contended for by appellee and that as a consequence the verdict and judgment should be upheld also as to the city."
It must be further borne in mind that in this case the city did not maintain one waterworks system for the supplying of fire protection and another for furnishing the people of the city of Columbus with water for private use, but that the system of waterworks is so constructed and is so maintained by the waterworks department that it serves a dual purpose, that is, it is maintained for both fire protection and supplying water for the daily consumption of its inhabitants. The dual purpose of waterworks and the rule applicable thereto is shown in 43 C.J. Section 1948, pages 1177 through 1180 inclusive, and among the cases cited thereunder we find the case of Wigal v. Parkersburg, 74 W. Va. 25 and 27, 81 S.E. 554, 52 L.R.A. (N.S.) 465, where the rule of the dual purpose of a municipality's waterworks system is discussed: "While it is true that a municipality is not liable for negligence in performing or failing to perform its purely discretionary or governmental functions, we do not think the maintenance of the water tanks in this case was purely governmental. The city's charter authorized it to acquire, erect, maintain and operate waterworks, and to sell water to its inhabitants for domestic use. It maintained its water works for the twofold purpose of fire protection and supplying water for the daily consumption of its inhabitants. It is argued that, inasmuch as the waterworks were maintained in part for fire protection, which is admittedly a discretionary or governmental act, the city is not liable because it undertook to supply and did supply water for domestic use to its inhabitants through the same waterworks system. But his contention is contrary to the rule that has been adopted by practically all the courts of the country. Municipalities supplying their inhabitants with water do not maintain separate waterworks for fire protection; water for both purposes is invariably supplied through the same mains. Neither do they undertake to supply water for domestic use without at the same time providing fire protection. So that, in every case dealing with the subject of municipal liability respecting the maintenance of waterworks, it may be fairly assumed that the plant was serving a dual purpose, and the rule is that, unless the negligence complained of is the work of extinguishing fires, the municipality is liable on the same principle that a corporation engaged in the same business is liable."
In the case of Miller Grocery Company v. Des Moines, 195 Iowa 1310, 192 N.W. 306, 28 A.L.R. 815, the court applied the rule above mentioned.
In the case before this court it was shown by the proof that the same water that was used by the inhabitants of the City of Columbus, Mississippi, for consumption was likewise use for fire protection and that the water that flowed throuh the mains was the same water that flowed throuh the fire hydrants and that the waterworks system was of a dual nature and serving a twofold purpose and the courts of the various states have held upon this theory of dual purpose that a municipality is liable for the negligent construction and maintenance of the water pipes, sewers, mains, conduits, and fire hydrants.
In the case of Aschoff v. Evansville, 34 Ind. App. 25, 72 N.E. 279, 14 A.L.R. 552, the dual purpose and theory of the maintenance of public water supply system for profit by a municipality is very intelligently discussed.
Counsels for appellants seem to find great comfort in arguing that the defective fire plug in this case is just as much a part of the fire department as was the fire chief and the vehicle in which he rode to the fire or as the hose, but in the Aschoff case above referred to the court unfortunately failed to agree with them and here we quote further from the case: "The waterworks system is an entire thing. The city is charged with the duty of using reasonable care in its construction and maintenance. Such duty applies to the system, and not to detached portions thereof. The hydrant is undoubtedly adapted to use in putting our fires, but a waterworks system, in the construction of which reasonable care is used, will not contain defective and unsufficient hydrants. The hose used by the firemen is not a part of the waterworks. The waterworks, when constructed was designed to serve the double use of the city in its governmental capacity and in its private capacity, and was thus maintained. The duty was therefore incumbent upon the city to maintain the plant so constructed that it might be reasonably safe for either use." See also Stifel v. St. Louis, 181 S.W. 577.
Daniel, McKee McDowell, for appellees.
After an exhaustive search of the decisions, it seems clear that a city owning and operating its own waterworks department is functioning in a private or corporate capacity and not in a governmental capacity and is therefore liable for the tortious conduct of its employees of that department. City of Jackson v. Anderson, 97 Miss. 1, 51 So. 896; Brown v. City of Meridian, 102 Miss. 384, 59 So. 795; Van Norman v. Meridian Waterworks Co., 102 Miss. 736, 59 So. 883.
It is believed that the above citations are sufficient to sustain this point of law without the necessity of all the additional and innumerable citations that could be made.
The appellant is relying on the factual situation that, at the time of the injury and damage complained of by the appellee, the fire department was using the hydrant or attempted to use the hydrant and therefore the City of Columbus is immune from liability due to the exercise of a governmental function and a lack of privity of contract between the water department and a private citizen concerning the use of the fire hydrant. The appellants have cited one and only one Mississippi case in which a water department was involved and have placed much stress upon this case as controlling in the case on appeal. The case cited is Wilkinson v. Light, Heat Water Co. of Jackson, 78 Miss. 389, 28 So. 877. This was a case based on contract between the City of Jackson and a private water company and all the court did in its opinion was to construe and interpret that contract which was set out at length in the statement of the case. To further show the true interpretation given to the Wilkinson case, reference is made to the case of Wade v. Gray, 104 Miss. 151, 164, 61 So. 168, 170, a case decided by this same court in the year 1913, thirteen years after the decision in the Wilkinson case. "We have not overlooked the consideration of the case of Wilkinson v. Light, Heat, Water Co., 78 Miss. 389, 28 So. 877, to which appellant's counsel has referred. That suit was based upon the contract of the company with the City of Jackson. No liability was claimed, except that arising from the contractual relations between the city and the company. The action was not in tort, as in the present case. Therefore the holding of the court in that case cannot help us to reach a conclusion in this." Without discussing further the main case relied on by the appellants, it is clear that the Wilkinson case has no application to the case on appeal; however, the dictum of that case indicates that had there been privity of contract between the individual and the outside water company, then the suit could have been maintained.
Now, the case on appeal is peculiar in this respect: That the negligence of the waterworks department caused a loss by fire. If the negligent maintenance of the hydrant has resulted in a flooded basement, there would not be much question as to liability; however, as the same negligence and the same proximate cause has resulted in a loss by fire, the appellants are raising the question of immunity due to a governmental function. The appellee has proved the negligence of the waterworks department and that that negligence was the proximate cause of his damage, which fact was definitely decided by the jury under the instructions given to it, and the appellants should not and cannot change the liability because of the nature and character of the damage.
Summarizing the major points involved in this case on appeal, they are as follows: (1) That the City of Columbus owned and operated the waterworks department involved in this case.
(2) That under the decisions of all the cases found, a waterworks company owned and operated by a city is a private, municipal or corporate function and not a governmental function.
(3) That the fire hydrant involved in this case as all fire hydrants in the City of Columbus are owned and maintained by the City Water Works Department exclusively.
(4) That the fire hydrant in this particular case in addition to being used by the fire department was also used by the waterworks department in the furtherance of its own business and its private purposes.
(5) That the jury was instructed by the court for the defendant as to the immunity of the fire department and lack of immunity of the water department.
(6) That the appellee alleged and proved negligence of the water works department only; and that appellant alone proved or attempted to prove negligence of the fire department, and the question of which negligence caused the loss was submitted to the jury
(7) That the court instructed the jury for the plaintiff that it should disregard the damage caused by the fire department and only consider the damage caused by the negligences of the water department.
(8) That the jury in this case was fully and amply instructed by the court for both the plaintiff and defendant and the questions of fact decided by the jury, and that the evidence sustains such verdict.
T.G. McIlwain and wife Alma S. McIlwain sued the City of Columbus, and A.A. Marshall, superintendent of its water works department, to recover $7,500.00, the value of property destroyed by fire through the negligence of defendants, so asserted by plaintiffs, in not extinguishing the fire. There was a verdict against defendants in the sum of $2,500.00, upon which judgment was entered, from which the defendants appeal here.
Two main questions are involved on the appeal. Was actionable negligence shown? Was the City acting in a governmental, as distinguished from a proprietary, capacity?
On the first question, the declaration charges that defendants did "permit and allow a fire hydrant located in the vicinity" of the destroyed property "to get in such defective state of repair that said firemen were unable to get water from said hydrant after making a connection". In another place the declaration states "the said hydrant was out of a good state of repair and in a defective condition". The proof discloses that inside the fire hydrant was a pin, the function of which, when the pin was turned left and right, was to open and close a valve inside the fire plug, which valve when open permitted the flow of water and when closed cut off such flow. On the occasion of this fire the water would not come on, and when the plug was gone into it was discovered that this pin was broken or "sheared" off, and would not open the valve and permit the water to flow from the hydrant. It is not claimed the City or any employee had actual knowledge of the defective condition of this pin. It is claimed only that the City and Marshall, superintendent of the water works, had constructive knowledge of such defective condition — that is, that the conditions were such that by reasonable prudence and diligence they should have known of the defective pin. The burden of establishing such negligence was, of course, upon the plaintiffs. Two witnesses were introduced on their behalf to do that. One was Sam Tucker. He lived near the fire plug. He said the plug was leaking before the fire; that he cut the grass from around the plug and "there was water in the little drain ditch. The grass was growing, made me have to cut a little more regular." But he also said that the street sprinkler got water from that plug "all along"; that while that was being done water would run out upon the ground. Asked if he saw the street sprinkler get water from the plug the morning before the fire occurred about noon the same day, he said he could not be certain but that his best recollection was it did.
The other witness was Lindsey Smith. He delivered ice to the residents of the vicinity of the hydrant and often passed it. When asked if he had noticed anything wrong with the plug he replied, "Well I knowed it was leaking by passing. I never did take much attention about the plug but I did know the plug was leaking because I seen the water running down the street"; that he did not know how long that had existed but thought perhaps three weeks. He said that the street sprinkler got water from that hydrant. On cross-examination he said he never saw any water running from the plug but he saw it running down the street; that the ground was wet around the plug.
That was the evidence of plaintiffs on that question.
On behalf of defendants it was shown that this pin was on the inside of the hydrant; that no inspection, or examination, of the pin could have been made without partially dismantling and going inside the plug; that no one knew the nature of the defect until the hydrant was dis-dismantled and the inside thereof examined after the fire; that this was a standard hydrant; that it had been put in new about a year previous to the fire; that the City of Columbus had 257 such hydrants; that the custom was to flush each one at least once a month; that the street sprinkler regularly obtained water from the hydrant with which to sprinkle the streets; that it did do that on the morning before this fire occurred about noon; and when that was done a certain amount of water always leaked out at the hose connection, and sometimes, when the hose was defective, considerable water leaked therefrom, and that the ground was always wet around plugs from which the street water was obtained, and after obtaining the street water some water usually ran down the street. Marshall, superintendent of the water system, testified that he had been employed in the water department thirty-three years and that during that time he had never heard of but one other pin being broken or "sheared". He further testified that on the morning of the fire he stood right beside this hydrant while workmen under him were laying a new water line, and that there was nothing about the appearance of this plug, or the ground around it, to suggest to him anything was wrong; that when the hydrant was dismantled after the fire and careful examination made of the inside thereof it was found that the break or "shear" had been freshly made, and presumably occurred when the pin was given a sudden, hard turn in the haste to make quick connection of the fire hose with the hydrant. There was no contradiction of the evidence of defendants on this point other than may be inferred from the testimony, as above set out, of the two witnesses for the plaintiff.
The evidence was not sufficient to charge constructive notice of the defective pin. The proof of plaintiffs shows only two things — first, that the ground was wet around the plug, and, second, that some water ran down the street. No one denies that the ground is wet around fire plugs from which the street sprinkler obtains water, nor from such plugs, on such occasions, water often runs down the street near the plug. Neither fact indicates there is anything wrong with the hydrant. But the facts upon which plaintiffs rely to show knowledge of a prior, causal defect disprove the conclusion. The trouble here was the water would not run from the plug. The proof of plaintiff showed water was running from the plug. That proof was to the effect that the valve was open. Here the defect was the valve would not open. All of this testimony, taken together, demonstrates clearly, in our opinion, the plaintiffs did not meet the burden resting upon them to show that defendants, by the exercise of reasonable care and diligence, should have known of the defect in this fire hydrant.
We might say no more and rest our decision upon the foregoing conclusion but some of the Judges are of the opinion that, because of the importance of this question to the public, we should decide whether or not, even if negligence were shown, the City would have been liable under the circumstances of this case. (Hn 1) Both sides admit that in extinguishing fires a municipality is acting in a governmental capacity and that in the operation of its water works its actions are of a proprietary nature. But it is contended by appellees that under the facts here it was acting in a dual capacity, and that the municipality is liable had negligence been shown on behalf of its servant in the water department, since the City of Columbus owns and operates the water system for a profit. Appellees rely upon City of Meridian v. Beeman, 175 Miss. 527, 166 Co. 757, 758. But that case may be distinguished from this. There a policeman, driving an automobile, negligently ran over plaintiff. The duties of the policemen were both governmental and proprietary. It was uncertain in what capacity he was acting when the injury occurred, and, his acts being those of the city, it was uncertain in what capacity the city was acting. In that situation this Court, by a four to two decision, held it would not attempt the technical task of "unscrambling the mixed relations". In the case at bar there is no question that when the fire occurred the city was acting in a governmental capacity. Alexander v. City of Vicksburg, 68 Miss. 564, 10 So. 62; City of Hattiesburg v. Geigor, 118 Miss. 676, 79 So. 846.
In 38 Am. Jur., page 328, it is said: "It is well settled that a municipal corporation is not responsible for the destruction of property within its limits by a fire which it did not set out, merely because, through the negligence or other default of the corporation or its employees, the members of the fire department failed to extinguish the fire whether this failure is due to an insufficient supply of water, the interruption of the service during the course of a fire, the neglect or incompetence of the firemen, the defective condition of the fire apparatus, negligence in permitting fire hydrants to become clogged or defective, or the impassable condition of the streets preventing the fire apparatus from reaching the burning property. In such cases, it makes no difference that the municipality uses the same reservoirs and pipes for its fire service that it employs for the distribution of a public supply for domestic purposes, from which it derives a profit, since the two functions are clearly distinguishable". The cases cited fully sustain the announced rule.
Able counsel for appellees have cited no case holding a municipality liable for failure to extinguish a fire. If such liability existed, history records many disasterous fires which would have resulted in complete bankruptcy of the municipality.
Reversed and judgment here for appellants.