Sutter v. Milwaukee Board of Fire Underwriters

The following opinion was filed November 14, 1916: WiNslow, C. J. The case was here before on a general demurrer to the complaint (161 Wis. 615, 155 N. W. 127), and it was then held that the defendant was not a municipal corporation and had no immunity from liability for the negligent acts of its servants even though they were performing duties which if performed by public officers would be governmental and public. It appeared upon the trial that an ordinance of the city of Milwaukee provided that officers and men of the defendant’s fire patrol, as well as officers and men of the city fire department, should have the right of way upon the street when going to or returning from a fire, except over-vehicles carrying the United States mail. The defendant’s, patrol wagon at the time of the accident was going west on Galena street towards Eleventh street in response to an alarm of fire, the horses being on a gallop. A little beyond the center of the crossing of the two streets the wagon ran over the deceased, who was coming from the north on Eleventh street and crossing Galena street. The trial court held that the ordinance was a valid ordinance and charged the jury that under its terms the defendant’s patrol wagon had the right of way over the deceased and that its driver had a right to assume that persons approaching Galena street would yield the right of way to him. [534] Tbe question on this appeal is whether the court was correct in this position. We think this question must be answered in the affirmative. While the defendant is not a municipal corporation it is not a corporation, organized for private gain, but for the purpose of maintaining a fire patrol, whose duty it is to “discover and prevent fires and to save and preserve life and property at fires.” Secs. 1922, 1923, Stats. This is a function which if performed by the city itself would be governmental or public. Engel v. Milwaukee, 158 Wis. 480, 149 N. W. 141. It is conceded that, if the city performs this duty with its own apparatus and employees, it may properly give them the right of way on the streets in order that the work may be more efficiently done. There seems no reason why the city might not, if it thought best, contract with independent agencies to maintain fire apparatus and employees for the extinguishing of fires and the saving of property, retaining, of course, the power of control over their work; and if so it must follow that the city could also give such apparatus and employees the right of way over the streets. To hold otherwise would be to hold that the city could not choose such a method except at the expense of efficiency. In the present case a private corporation not organized for gain is, at its own expense and in pursuance of legislative authority, assisting the city in the discharge of its public duty; it is subject to the control of the head of the city fire department while it is discharging that duty; so far as the community is concerned it is practically a public agency doing a public work under public control. The city cannot clothe that agency with immunity from its own negligence, but no reason is perceived either in law or morals why it may not in the interest of public welfare endow it with the same privileges on the public streets while engaged in public work as it gives to its own apparatus and employees engaged in the same work. [535] We do not consider that the general law giving the owners, of motor vehicles the same rights on the public streets as all other -users of highways (secs. 1636 — 51 and 1636 — 55, Stats.) interferes in any way with the power of the municipality to make regulations as to the use of its streets in the proper exercise of the police power. That law was evidently enacted to place motor vehicles on the same footing on the public streets with horse-drawn vehicles. There is little authority on the subject. Under a peculiar constitutional provision in Kentucky a grant of right of way to a corporation of similar nature was held void, but the reasoning does not seem persuasive to us and there is no such constitutional provision in Wisconsin. A grant of similar nature in the charter of the city of New York was sustained by the courts of that state. Duffghe v. Metropolitan St. R. Co. 109 App. Div. 603, 96 N. Y. Supp. 324, affirmed in 187 N. Y. 522, 79 N. E. 1104, without opinion. By the Court.- — Judgment affirmed. Eschweilee, J., took no part.