Long v. City of Birmingham

SAYRE, J. The appellant was injured by falling from an extension ladder while in the performance of his duties as a fireman for the city of Birmingham. The complaint asserts the liability of the defendant corporation ; several counts proceeding upon various sections of the employer’s liability act, and others upon supposed derelictions of the city in furnishing to the appellant a safe place or safe instrumentalities in which and with which to perform his duties as a. fireman. The court below sustained a demurrer to the complaint, which went upon the fundamental ground that in furnishing fire apparatus and operating its fire department the city was in the performance of a governmental -duty, and so not responsible for the acts or omissions of its officers, agents, or employes, or responsible for defects in its apparatus. The demurrer was sustained, and this appeal followed. The plaintiff’s injury Avas sustained in October, 1906. The then charter of the city of Birmingham conferred upon it power to establish and maintain a fire department. — Loc. Acts 1898-99, p. 1412. It may be conceded that the employer’s liability act applies to municipal corporations, except where such corporations are engaged in the discharge of governmental duties; that is to say, in the exercise of powers conferred for the general public good, as distinguished from those conferred for [430] the private advantage of the corporation. The line which marks the difference between powers conferred upon municipal corporations for the public good and those conferred for the private advantage of the corporation has never been drawn except in general terms. A good example of the efforts in that direction is to be found in Richmond v. Long, 17 Grat. (a.) 375, 94 Am. Dec. 461, where it is said: “The functions of such municipalities are obviously twofold: (1) Political, discretionary, and legislative, being such public franchises as are conferred upon them for the government of their inhabitants and the ordering of their public officers, and to be exercised solely for the public good, rather than for their special advantage; and (2) those ministerial, specified duties which are assumed in consideration of the privileges conferred by their charter. Within the sphere of the former, they are entitled to this exemption inasmuch as the corporation is a part of the government to that extent, its officers are public officers, and as such entitled to the protection of this principle; but within the sphere of the latter they drop the badges of their governmental offices and stand forth as the delegates of a private corporation in the exercise of private franchises, and amendable as such to the great fundamental doctrine of liability for the acts of their servants.” Such general expressions afford but little aid in reaching a solution of any particular case. In Bailey v. New York, 3 Hill (N. Y.) 531, 38 Am. Dec. 669, it was observed that, “in order to determine whether powers exercised by a municipal corporation in a given instance be public or private, regard must be chiefly had to the object for which they were granted.” Nothing in the terms of the charter of the defendant municipality or in the general statutes settles the question. That the power, in the exercise of which munici [431] pal corporations maintain and operate fire departments, is classed by the overwhelming weight of adjudicated cases as among those governmental powers which are granted for the public good, and so, as to it, municipal corporations accorded exemption from the general rule of respondeat superior, must depend upon considerations of a sound public policy, which would relieve them of the disadvantages and embarrassments of responsibility for those inevitable miscarriages which attend the performance of duties at once so difficult, so urgent, and so important. To hold otherwise, using the language of the court in Foster v. Water Co., 3 Lea (Tenn.) 48, “might Avell frighten our municipal corporations from assuming the startling risk” involved in the effort to protect themselves against fire. If the function is public and governmental at all, it must be so in every part. A somewhat careful research has disclosed only one case in which a municipal corporation has been held liable for the acts or omissions of firemen in the discharge of their duty or for negligence in the maintenance of fire apparatus. The weight of authority, as we have said, is to the contrary. We cite some of the cases in which it has been held that a municipal corporation, in maintaining and operating a fire department, is acting for the general public good and is not amenable to the general rule of respondeat superior. They proceed in various ways to an identical conclusion.— Wilcox v. Chicago, 107 Ill. 334, 47 Am. Rep. 434; Welsh v. Rutland, 56 Vt. 228, 48 Am. Rep. 762; Hayes v. Oshkosh, 33 Wis. 314, 14 Am. Rep. 760; Fisher v. Boston, 104 Mass. 87, 6 Am. Rep. 196; Edgerly v. Concord, 50 N. H. 78; Burrill v. Augusta, 78 Me. 118, 3 Atl. 177, 57 Am. Rep. 788; Hafford v. New Bedford, 16 Gray (Mass.) 297; Jewett v. New Haven, 38 Con., 368, 9 Am. Rep. 382; Queenwood v. Louisville, 13 Bush (Ky) 226, [432] 26 Am. Rep. 263; Alexander v. Vicksburg, 68 Miss. 564, 10 South. 62; Peterson v. Wilmington, 130 N. C. 76, 40 S. E. 853, 56 L. R. A. 959; Wheeler v. Cincinnati, 19 Ohio St. 19, 2 Am. Rep. 368; Davis v. Lebanon, 108 Ky. 688, 57 S. W. 471; Brinkmeyer v. Evansville, 29 Ind. 187; Wild v. Peterson, 47 N. J. Law, 406 1 Atl. 490; Irvine v. Chattanooga, 101 Tenn. 291, 47 S. W. 419; Kies v. Erie, 135 Pa. 144, 19 Atl. 942, 20 Am. St. Rep. 867; Howard v. San Francisco, 51 Cal. 52; Torbush v. Norwich, 38 Conn. 225; Smith v. Rochester, 76 N. Y. 506; Robinson v. Evansville, 87 Ind. 334, 44 Am. Rep. 770; Grube v. St. Paul, 34 Minn. 402, 26 N. W. 228; Mayor v. Workman, 67 Fed. 347, 14 C. C. A. 530. Affirmed. Dowdell, C. J., and Anderson and McClellan, JJ., concur.