Folk v. City of Milwaukee

"Winslow, J. The question is whether a city is liable for the death of a child lawfully attending one of its public schools, when such death is caused by negligently allowing the sewer of the school building to become clogged up. We 363 think this question must be answered in the negative. This, court early adopted and has consistently maintained the rule that a municipal corporation is not liable for injuries resulting from the acts or defaults of its officers where it is engaged in the performance of a merely public service, from which it derives no benefit 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. Oshkosh, 33 Wis. 314. The case cited was one where the negligence claimed was the negligence of firemen in the discharge of their duty, and the same principle has been applied to the acts of taxing officers, policemen, and health officers. Wallace v. Menasha, 48 Wis. 79; Kuehn v. Milwaukee, 92 Wis. 263; Kempster v. Milwaukee, 103 Wis. 421. That the city is performing such a public duty in maintaining public schools cannot be doubted. The principle is thus stated in 1 Shearm. & Redf. Neg. (5th ed.), § 267: “ The duty of providing means of education at the public expense by building and maintaining school houses, employing teachers, etc., is purely a public duty, in the discharge of which the local body, as the state’s representative, is exempt from corporate liability for the faulty construction or want of repair of its school buildings, or the torts of its servants employed therein.” The leading case upon the subject is probably the case of Hill v. Boston, 122 Mass. 344, where the whole field was very learnedly and exhaustively discussed. This case has been followed in principle by other courts. Wixon v. Newport, 13 R. I. 454; Donovan v. Board of Education, 85 N. Y. 117; Hughes v. Auburn, 161 N. Y. 96; Ford v. Kendall School Dist. 121 Pa. St. 543; Finch v. Board of Education, 30 Ohio St. 37. While the exact question here presented is new in this court, the weight of authority (especially in Massachusetts, from which state we have so largely taken our doctrine as to municipal liability for torts) is so strong in favor of the rule quoted 364 above that we feel no hesitation in following it. If or is the rule unreasonable. Indeed, were a recovery possible under the facts stated here, no reason is perceived why damages might not be allowed for every sickness suffered by a scholar which could be traced to defective or injudicious heating, ventilation, or lack of ventilation of a school building. Such a result would be intolerable, and might necessitate the closing of schools, by the exhaustion of funds to discharge such judgments. "We do not lose sight of the fact that there is another principle frequently approved by this court, namely, that a municipal corporation may not construct or maintain a nuisance in the street or upon its property to the damage of another, or negligently turn water or sewage upon the lands of another, without liability. Gilluly v. Madison, 63 Wis. 518; Hughes v. Fond du Lac, 73 Wis. 380; Schroeder v. Baraboo, 93 Wis. 95. These cases all go upon the principle that the city cannot in the management of its corporate property create a nuisance injurious to the property or rights of others. In none of these cases were the city officers who were guilty of negligent or wrongful acts acting in a governmental capacity toward the person injured. In the present case, however, there can be no doubt that in the management of the school house the city officials were acting in a purely governmental capacity, as far as their relations to the deceased child were concerned. This consideration is, we think, controlling, and results in affirmance of the ruling of the trial court. By the Court.— Order affirmed.