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(- Tenn. 251 8. W. 46.) excluded from its benefits. It does It is contended by the complainnot appear that the insurance is not ants that chapter 32 of the Acts of unauthorized as a donation, or as ex- 1899, under which the water plant tra compensation (Mahon v. Board of the city of Memphis is operated, of Education, 171 N. Y. 263, 89 Am. is invalid, for the reason that it was St. Rep. 810, 63 N. E. 1107), as to enacted for the special benefit of any of the employees of the city. Memphis, and confers rights and The inadequacy of the record in this privileges upon that city not enand other respects precludes us from joyed by the other cities of the examining the question as to the state. power of the city to take out group In Todtenhausen v. Knox Counlife insurance for the benefit of its ty, 132 Tenn. 172, 177 S. W. 487, it employees who may thereafter die was held otherwise. Independently or become disabled while in the serv- of this, the city had a right to opice of the city. The order should erate a waterworks system, and to therefore be affirmed, with costs. employ laborers, fix their compensa

Order affirmed.” People ex tion, etc. rel. Terbush & Powell v. Dibble, This is an important case, and we 231 N. Y. 593, 132 N. E. 901.

take this means of expressing our We are therefore of the opinion gratitude to the attorney general that the action of the city in taking and to counsel for the defendants for

out said group in- the able manner in which the case Municipal

surance was in no was briefed and argued.

sense illegal, and The Chancellor held the action of group Insurance that the expendi- the city in taking out said policy of employees.

ture of said fund insurance valid, and his decree will was for a public purpose.

be affirmed, with costs.

corporations, power to effect

ANNOTATION.

Right to use public funds to carry insurance for public officers or employees.

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This question was treated in the annotation in 16 A.L.R. 1089, the present treatment being supplementary thereto.

The recent cases uphold the right of municipal corporations to use public funds to carry insurance for their officers and employees.

Thus, in the reported case (STATE EX REL, THOMPSON v. MEMPHIS, ante, 1257) it is held that a city having power to increase the wages its employees may take out group insurance for their benefit, if it will receive better service by so doing, without violating a constitutional provision forbidding the appropriation of public funds for private purposes, and, consequently, that the payment by a city from its water department funds of the premiums on a group insurance for the employees of that department was not illegal, but was an expenditure for a public purpose.

And in Bowers v. Albuquerque (1921) 27 N. M. 291, 200 Pac. 421, the New Mexico supreme court, following the decision in Nohl v. Board of Education (1921) 27 N. M. 232, 16 A.L.R. 1085, 199 Pac. 373, which, as shown in the earlier annotation, held that payments for group insurance school-teachers were proper penditure, upheld the general right of a municipal corporation to carry group insurance on the lives of the officers and employees thereof. The Bowers Case also holds that a statute prohibiting an increase in the salary of a city officer during the term for which he shall be elected or appointed does not invalidate group insurance; at least, as to officers having no fixed term of office,

The decision in People ex rel. Terbush & Powell v. Dibble (1921) 189 N. Y. Supp. 29, as affirmed without opinion in (1921) 196 App. Div. 913, 231 N. Y. 593, 132 N. E. 901; but 186 N. Y. Supp. 951, and which is set that court did not pass upon the funout in the annotation in 16 A.L.R. damental question as to the right of 1089, was subsequently affirmed by the the city in question to insure its ofNew York court of appeals in (1921) ficers and employees. G. J. C.

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(178 Wis. 340, 190 N. W. 110.) Water — liability for intentional interference with power for extinguishing

fires. 1. A power company which has contracted to furnish a city with power to pump water for the extinguishment of fires is liable to a property owner for loss due to its intentional, unwarranted, and unnecessary interruption of the power while a fire is in progress.

[See note on this question beginning on page 1273.] – breach of contract to furnish pow- Pleading — adoption of most favoraer to pump water for fires.

ble view. 2. A power company is not liable for

3. If two permissible constructions loss to a taxpayer by breach of its

of a complaint, are presented, the contract to furnish a municipality

court must adopt that which will sup

port the cause of action, rather than with power to pump water for extin

another which would tend to show no guishing fires.

legal ground of action. [See 19 R. C. L. 795.]

[See 21 R. C. L. 464.]

APPEAL by plaintiff from an order of the Circuit Court for Rock County (Grimm, J.) sustaining a demurrer to the complaint in an action brought to recover damages for loss of plaintiff's property by fire, alleged to have been caused by failure of defendant to furnish sufficient power to extinguish the fire. Reversed.

Statement by Eschweiler, J.: whereby it was to furnish electric

The complaint alleges: That the power to the said city for the opplaintiff is a manufacturing corpo- eration by the city of two pumps in ration doing business in the city of connection with its waterworks sysEdgerton, Wisconsin. That defend tem, which had theretofore been ant, also a Wisconsin corporation, operated by steam

steam power, and is in the business of generating, which system furnished water to its purchasing, selling, and distribut- inhabitants for private use, and also ing electric current, with its prin- such as was to be used for the purcipal location at Janesville, and for pose of extinguishing fires by the some time prior to May, 1921, it was city's organized and maintained fire supplying electric current to the department. That defendant mainplaintiff and other residents of Edg- tained a

tained a substation in said city erton for light and power purposes through which the electric power and to that city for street lighting was communicated from the power purposes. That in May, 1921, the line running from Janesville, and city and defendant made a contract constructed and maintained a pole (178 Wis. 340, 190 N. W. 110.) line from such substation to the said paratively small area so using the pumping station, such line carrying pressure as developed and main6,600 volts and running in an alley- tained by the defendant's electric way between certain buildings then current, the defendant negligently, belonging to and used by the plain- at about 1:15 A. M., caused the electiff. That on July 4, 1921, at about tric current to be cut off on its lines 12:45 A. M., one of plaintiff's sets of to the city of Edgerton at the main buildings was discovered to be on plant in Janesville, and remained so fire. That promptly thereafter the discontinued for the space of three fire department of Edgerton re- fourths of an hour, during which sponded to the alarm, and com- period defendant cut the primary menced throwing water on the fire wires on one of the poles in the pole at about 1 A. M. That the pumps line between plaintiff's plant and necessary for supplying the water the pumping station. That there for such use were immediately put was no necessity or occasion for the in operation under the electric cur- cutting of the wires or the suspendrent so furnished by defendant, and ing of service, as was then known then and thereafter, so long as such to defendant's local manager and current was being supplied, were servants. That such cutting of the giving sufficient and ample pressure primary wires was carelessly and to the water supply to enable the negligently done, and much more firemen to reach and control, and time used in so doing than was neceventually to subdue, the fire, if essary in the exercise of ordinary such pressure had been continuous- care, and by reason of such unnecly maintained.

essary interruption of the service That there was a failure by de, the fire progressed beyond the confendant to comply with the require- trol of the firemen. That at the ments of standard construction and time of the cutting off of the elecof ordinary care in the installation tric current at Janesville as aforeof its electric equipment, in that the said the local manager of defendant defendant failed to provide a sep- at Edgerton was informed that the arate main-line switch or similar steam plant was not then ready to equipment for the city pumping sta- furnish steam power sufficient to tion separate from other connec- operate the pumps in the pumping tions, so that the electric current to station for some considerable period other consumers could be cut off of time, and too late to be of value without interfering with the sup- in the putting out of the fire. ply to the city pumping station. That the electric service was reThat the need of such form of in- stored by defendant at about 2 stallation was known to defendant o'clock A. M., but that then the deat the time of installation. That fendant negligently failed to notify they were then also informed and any of the officers or employees of knew that the steam plant then be- the city of the fact of the restoration longing to the city of Edgerton and of such service, and that by reason theretofore used as a means of run- thereof the city continued

use the ning the waterworks system would steam auxiliary plant so then furbe maintained as an auxiliary, but nishing insufficient pressure, and that as such it would take an hour that, had such information of resor more, after notice of the need toration of service been promptly thereof, before such steam auxiliary given, the electric pumps could then could give sufficient and normal have been again put in operation, pressure on the water mains. and a portion of the buildings and

That after the starting of the fire their contents have been saved. and while the fire department was That upon such cutting off of engaged in subduing and control- the electric current the pressure ling the said fire and had the same dropped to about one half of the under control and confined to a com- normal and was insufficient to en; able the firemen to control or extin- 20 L.R.A.(N.S.) 1110, 127 Am. St. Rep. guish the fire, and that by reason 309, 86 N. E. 611; Metallic Compres. thereof the fire passed beyond their

sion Casting Co. v. Fitchburg R. Co. control, and destroyed plaintiff's

109 Mass. 277, 12 Am. Rep. 689; Globe

Malleable Iron & Steel Co. v. New buildings and the personal property

York C. & H. R. R. Co. 227 N. Y. 58, therein, to the plaintiff's loss of

5 A.L.R. 164, 124 N. E. 109; Erickson $295,000. That, except for the neg

v. Great Northern R. Co. 117 Minn. ligent acts and omissions of the de

348, 39 L.R.A.(N.S.) 237, 135 N. W. fendant as in the complaint al- 1129, Ann. Cas. 1913D, 763, 3 N. C. C. leged, there would have been but a A. 490; Clark v. Grand Trunk Western partial loss of the buildings and R. Co. 149 Mich. 400, 112 N. W. 1121, contents, instead of a complete loss, 12 Ann. Cas. 559; Phenix Ins. Co. v. and that therefore the plaintiff sus

New York C. & H. R. R. Co. 122 App. tained damages by reason of the

Div. 113, 106 N. Y. Supp. 696, affirmed

in 196 N. Y. 554, 90 N. E. 1164; Mc. negligent acts and omissions of the defendant, and as the proximate 446; Kiernan v. Metropolitan Constr.

Adoo v. Hanway, 135 Md. 656, 109 Atl. result thereof, in the sum of $250,

Co. 170 Mass. 378, 49 N. E. 648; Little 000, for which sum as damages Rock Traction & Electric Co. v. Mc. judgment was prayed.

Caskill, 75 Ark. 133, 70 L.R.A. 680, 112 The defendant demurred to the Am. St. Rep. 48, 86 S. W. 997, 18 Am. complaint on the ground that it ap

Neg. Rep. 1; Hurley v. Missouri, K. & pears upon the face thereof that the T. R. Co. 170 Mo. App. 235, 156 S. W. same does not state facts sufficient

57; Crissey & F. Lumber Co. v. Denver

& R. G. R. Co. 17 Colo. App. 275, 68 to constitute a cause of action. The

Pac. 670; Louisville & N. R. Co. v. demurrer was sustained by the

Scruggs, 161 Ala. 97, 23 L.R.A.(N.S.) court below, and from the order

184, 135 Am. St. Rep. 114, 49 So. 399. made upon such decision plaintiff Defendant's contract with the city has appealed.

to supply electric current for the opMessrs. Olin, Butler, Thomas, Steb

eration of its fire pump has no bearbins, & Stroud, for appellant:

ing on its duty or liability to plaintiff. The action is in tort.

Britton v. Green Bay & Ft. H. WaterSullivan v. Ashland Light, Power &

works Co. 81 Wis. 48, 29 Am. St. Rep. Street R. Co. 156 Wis. 445, 146 N. W.

856, 51 N. W. 84; American Sheet & 506; Samuel Meyers v. Ogden Shoe

Tinplate Co. v. Pittsburgh & L. E. R. Co. 173 Wis. 317, 181 N. W. 306; Ott

Co. 12 L.R.A. (N.S.) 382, 75 C. C. A. v. Hood, 152 Wis. 97, 44 L.R.A.(N.S.)

47, 143 Fed. 789, 6 Ann. Cas. 626; 524, 139 N. W. 762, Ann. Cas. 1914C,

Little Rock Traction & Electric Co. v. 636; Laun v. Kipp, 155 Wis. 347, 5

McCaskill, 75 Ark. 133, 70 L.R.A. A.L.R. 655, 145 N. W. 183.

680, 112 Am. St. Rep. 48, 86 S. W. 997,

18 Am. Neg. Rep. 1. The complaint states facts sufficient

Defendant is not within the printo constitute a cause of action for damages resulting from defendant's

ciple of the cases exempting cities and negligent interference with the fire

water companies from liability in protection service which plaintiff was

case of failure to furnish water for receiving from the city fire depart

fire protection purposes. ment.

Concordia F. Ins. Co. v. Simmons Concordia F. Ins. Co. v, Simmons

Co. 167 Wis. 541, 168 N. W. 199; Hayes

v. Oshkosh, 33 Wis. 314, 14 Am. Rep. Co. 167 Wis. 541, 168 N. W. 199; Cleveland, C. C. & St. L. R. Co. v.

760; Britton v. Green Bay & Ft. H.

Water Works Co. 81 Wis. 48, 29 Am. Tauer, 176 Ind. 621, 39 L.R.A. (N.S.) 20, 96 N. E. 758; Kirstein v. Phila

St. Rep. 856, 51 N. W. 84; Krom v. delphia & R. R. Co. 257 Pa. 192, 5

Antigo Gas Co. 154 Wis. 528, 140 N. A.L.R. 1646, 101 Atl. 338, 15 N. C. C.

W. 41, 143 N. W. 163; German AlliA. 1049; Louisville & N. R. Co. v. Dun

ance Ins. Co. v. Home Water Supply can, 16 Ala. App. 520, 79 So. 513;

Co. 226 U. S. 220, 57 L. ed. 195, 42 American Sheet & Tin Plate Co. v.

L.R.A. (N.S.) 1000, 33 Sup. Ct. Rep. 32. Pittsburgh & L. E. R. Co. 12 L.R.A.

Messrs. Jeffris, Mouat, Oestreich, (N.S.) 382, 75 C. C. A. 47, 143 Fed. Avery, & Wood, for respondent: 789, 6 Ann. Cas. 626; Houren v. Chi- In the absence of an absolute statucago, M. & St. P. R. Co. 236 Ill. 620, tory duty, and where the water com199;

(178 Wis. 340, 190 N. W. 110.) pany is furnishing water to the mu- tract, sufficient pressure in the wanicipality for fire protection under

ter mains. contract or under ordinance, there is

No question can well be raised no liability in favor of an individual but that under the established docproperty owner for negligence of the

trine in this state, as well as almost water company, either on contract or

universally elsewhere, under no in tort. Britton v. Green Bay & Ft. H.

construction to be given to the facts Waterworks Co. 81 Wis. 48, 29 Am. St.

alleged in the complaint, could there Rep. 856, 51 N. W. 84; Krom v. Antigo be a liability established as against Gas Co. 154 Wis. 528, 140 N. W. 41, the city of Edgerton for the loss oc143 N. W. 163; Concordia F. Ins. Co. curring to plaintiff by the interrupv. Simmons Co. 167 Wis. 541, 168 N. W.

tion in the service being rendered Hayes v. Oshkosh, 33 Wis. 314, 14

by the city in extinguishing the fire Am. Rep. 760; Manske v. Milwaukee,

in plaintiff's building. 123 Wis, 172, 101 N. W. 377, 17 Am. Neg. Rep. 388; Higgins v. Superior,

.

In Hayes v. Oshkosh, 33 Wis. 314, 134 Wis. 264, 13 L.R.A. (N.S.) 994, 114

14 Am. Rep. 760, where sparks from N. W. 490; Allen & C. Mfg. Co. v.

the city's fire engines, then being Shreveport Waterworks Co. 113 La. carelessly operated in the putting 1091, 68 L.R.A. 650, 104 Am. St. Rep. out of a fire in a neighboring barn, 525, 38 So. 980, 2 Ann. Cas. 471; An- set plaintiff's store afire and damcrum v. Camden Water, Light & Ice aged his goods, it was held that, the Co. 82 S. C. 284, 21 L.R.A.(N.S.) 1029,

city being then in the performance 64 S. E. 151; Niehaus Bros. Co. v.

of a public service in which it has Contra Costa Water Co. 159 Cal. 305, 36 L.R.A.(N.S.) 1045, 113 Pac. 375.

no particular interest and from

which it derives no special benefit, Eschweiler, J., delivered the opin- its firemen were acting not as servion of the court:

ants or agents, but as public officers, The defendant in supporting the

and that there was no liability as order sustaining the demurrer against the municipality in the aburges as follows:

sence of a statute to that effect. First. That the complaint must The same doctrine was upheld in be construed as disclosing a situa- Manske v. Milwaukee, 123 Wis. 172, tion wherein the defendant has but

101 N. W. 377, 17 Am. Neg. Rep. breached its contract with the city 388, where plaintiff was injured by of Edgerton for the furnishing of the negligence of an employee of the electric current for the waterworks

fire department in carelessly movof said city.

ing a pair of scales used in weighSecond. That in the maintaining ing coal for the city fire departand operating of such waterworks ment; again, in Higgins v. Superior, system-so far, at least, as to its

134 Wis. 264, 13 L.R.A.(N.S.) 994, use in extinguishing fires—the city 114 N. W. 490, where the injury ocof Edgerton was only performing a curred through the negligence of a governmental function, and for de

known incompetent driver for the fault therein such city incurs no

city fire department; again, in Enliability whatsoever.

gel v. Milwaukee, 158 Wis. 480, 149 Third. That inasmuch as defend- N. W. 141, where the city was held ant's connection with such services not liable for an injury caused by is based upon its contract with the

the negligence of the driver of the city, the defendant also cannot be automobile used in the department held liable, though engaged in fur

of the fire and police alarm system. nishing but part of the necessary That such view is in accord with service for the purpose of extin- the overwhelming weight of authorguishing fires, just as water com

ity in this country is clearly indipanies conducting the entire water- cated from the cases listed in 9 works system under contract with A.L.R. 143. But one state in recent the city have been held not liable for years has held to the contrary, and failure to keep up, according to con- by a decision in 1919 the Ohio su

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