Heller v. Mayor of Sedalia

Adams, Judge, delivered the opinion of the court. The case comes here on demurrer to the plain tiff’s petition, which was sustained by the Circuit Court. The suit originated in Pettis county, and was taken by change of venue to the Henry Circuit Court. The petition alleges, that the defendant being a municipal corporation was authorized by its charter to establish fire companies in the city and to pass by-laws and ordinances to prevent and extinguish fires, and the petition further alleges, that the defendant did pass an ordinance establishing and regulating the fire department of the city, and under this ordinance one Isaac Graham was appointed chief engineer of the fire department, and accepted the appointment, and entered on the duties of office at a salary of seventy dollars per month, and that under the same ordinance one John B. Gallie was appointed chief of the Fire Department, and accepted the appointment, arid duly qualified as such, and entered on the duties of his office. The petition further alleges, that the plain — 161 — tiffs were the owners of a valuable brewery situated in said city, which with the contents was consumed by fire on th 25th day of March,' 1869; and that their loss by fire amounted to thirty-one thousand dollars. The petition alleges, that the fire might have been extinguished by proper exertions on the part of the officers of the fire department; and further •alleges, that the loss occurred by the negligence of the officers &c., of the fire department, and claims that the city was liable for such loss. In my judgment the demurrer was properly sustained to this petition. It was not the intention of the Legislature, in conferring power on the city to establish a fire department, to render it responsible as an insurer for losses by fire. The power conferred was a legislative or discretionary power, which the city authorities might in their wisdom exercise or not. The creation of the fire department was not for the peculiar benefit of the corporation, but for the public. And the officers of j this department, although appointed by the city, are public i officers, and not agents of the city in the sense that renders i the city liable, for their acts or omissions of duty. The doctrine of “ respondeat superior ” does not apply to this case, nor do the facts charged in the petition bring this within the numerous classes of cases, where a city is held liable for injuries in. the construction of public works, or the .neglect of some specific duty, such as keeping streets in repair, whereby damages result to travellers, &c. (Dill. Mun. Corp. § 774; Wheeler vs. Cincinnati, 19 Ohio St., 19; Patch vs.Covington, 17 B. Mon., 722; Brockmeyer vs. Evansville, 29 Ind., 187; Wrightman vs. Washington, 1 Blackf., 39.) Let the judgment be affirmed. The other Judges concur.