(Tenn. 251 S. W. 46.) excluded from its benefits. It does not appear that the insurance is not unauthorized as a donation, or as extra compensation (Mahon v. Board of Education, 171 N. Y. 263, 89 Am. St. Rep. 810, 63 N. E. 1107), as to any of the employees of the city. The inadequacy of the record in this and other respects precludes us from examining the question as to the power of the city to take out group life insurance for the benefit of its employees who may thereafter die or become disabled while in the service of the city. The order should therefore be affirmed, with costs. Order affirmed." People ex rel. Terbush & Powell v. Dibble, 231 N. Y. 593, 132 N. E. 901.

It is contended by the complainants that chapter 32 of the Acts of 1899, under which the water plant of the city of Memphis is operated, is invalid, for the reason that it was enacted for the special benefit of Memphis, and confers rights and privileges upon that city not enjoyed by the other cities of the state.

We are therefore of the opinion that the action of the city in taking out said group insurance was in no sense illegal, and that the expenditure of said fund

Municipal corporationspower to effect group insurance for employees.

was for a public purpose.

In Todtenhausen v. Knox County, 132 Tenn. 172, 177 S. W. 487, it was held otherwise. Independently of this, the city had a right to operate a waterworks system, and to employ laborers, fix their compensation, etc.

This is an important case, and we take this means of expressing our gratitude to the attorney general and to counsel for the defendants for the able manner in which the case was briefed and argued.

The Chancellor held the action of the city in taking out said policy of insurance valid, and his decree will be affirmed, with costs.

ANNOTATION.

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

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 of 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.

on

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 a proper expenditure, 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

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 power to pump water for fires.

2. A power company is not liable for loss to a taxpayer by breach of its contract to furnish a municipality with power to pump water for extinguishing fires.

[See 19 R. C. L. 795.]

Pleading adoption of most favorable view.

3. If two permissible constructions of a complaint, are presented, the court must adopt that which will support the cause of action, rather than another which would tend to show no legal ground of action.

[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.:

The complaint alleges: That the plaintiff is a manufacturing corporation doing business in the city of Edgerton, Wisconsin. That defendant, also a Wisconsin corporation, is in the business of generating, purchasing, selling, and distributing electric current, with its principal location at Janesville, and for some time prior to May, 1921, it was supplying electric current to the plaintiff and other residents of Edgerton for light and power purposes and to that city for street lighting purposes. That in May, 1921, the city and defendant made a contract

whereby it was to furnish electric power to the said city for the operation by the city of two pumps in connection with its waterworks system, which had theretofore been operated by steam power, and which system furnished water to its inhabitants for private use, and also such as was to be used for the purpose of extinguishing fires by the city's organized and maintained fire department. That defendant maintained a substation in said city through which the electric power was communicated from the power line running from Janesville, and constructed and maintained a pole

(178 Wis. 340, 190 N. W. 110.)

line from such substation to the said pumping station, such line carrying 6,600 volts and running in an alleyway between certain buildings then belonging to and used by the plaintiff. That on July 4, 1921, at about 12:45 A. M., one of plaintiff's sets of buildings was discovered to be on fire. That promptly thereafter the fire department of Edgerton responded to the alarm, and commenced throwing water on the fire at about 1 A. M. That the pumps necessary for supplying the water for such use were immediately put in operation under the electric current so furnished by defendant, and then and thereafter, so long as such current was being supplied, were giving sufficient and ample pressure to the water supply to enable the firemen to reach and control, and eventually to subdue, the fire, if such pressure had been continuously maintained.

That there was a failure by defendant to comply with the requirements of standard construction and of ordinary care in the installation of its electric equipment, in that the defendant failed to provide a separate main-line switch or similar equipment for the city pumping station separate from other connections, so that the electric current to other consumers could be cut off without interfering with the supply to the city pumping station. That the need of such form of installation was known to defendant at the time of installation. That they were then also informed and knew that the steam plant then belonging to the city of Edgerton and theretofore used as a means of running the waterworks system would be maintained as an auxiliary, but that as such it would take an hour or more, after notice of the need thereof, before such steam auxiliary could give sufficient and normal pressure on the water mains.

That after the starting of the fire and while the fire department was engaged in subduing and controlling the said fire and had the same under control and confined to a com

paratively small area so using the pressure as developed and maintained by the defendant's electric current, the defendant negligently, at about 1:15 A. M., caused the electric current to be cut off on its lines to the city of Edgerton at the main plant in Janesville, and remained so discontinued for the space of three fourths of an hour, during which period defendant cut the primary wires on one of the poles in the pole line between plaintiff's plant and the pumping station. That there was no necessity or occasion for the cutting of the wires or the suspending of service, as was then known to defendant's local manager and servants. That such cutting of the primary wires was carelessly and negligently done, and much more time used in so doing than was necessary in the exercise of ordinary care, and by reason of such unnecessary interruption of the service the fire progressed beyond the control of the firemen. That at the time of the cutting off of the electric current at Janesville as aforesaid the local manager of defendant at Edgerton was informed that the steam plant was not then ready to furnish steam power sufficient to operate the pumps in the pumping station for some considerable period of time, and too late to be of value in the putting out of the fire.

That the electric service was restored by defendant at about 2 o'clock A. M., but that then the defendant negligently failed to notify any of the officers or employees of the city of the fact of the restoration of such service, and that by reason thereof the city continued to use the steam auxiliary plant so then furnishing insufficient pressure, and that, had such information of restoration of service been promptly given, the electric pumps could then have been again put in operation, and a portion of the buildings and their contents have been saved.

That upon such cutting off of the electric current the pressure dropped to about one half of the normal and was insufficient to en

(178 Wis. 340, 190 N. W. 110.)

pany is furnishing water to the municipality for fire protection under contract or under ordinance, there is no liability in favor of an individual property owner for negligence of the water company, either on contract or in tort.

Britton v. Green Bay & Ft. H. Waterworks Co. 81 Wis. 48, 29 Am. St. Rep. 856, 51 N. W. 84; Krom v. Antigo Gas Co. 154 Wis. 528, 140 N. W. 41, 143 N. W. 163; Concordia F. Ins. Co. v. Simmons Co. 167 Wis. 541, 168 N. W. 199; Hayes v. Oshkosh, 33 Wis. 314, 14 Am. Rep. 760; Manske v. Milwaukee, 123 Wis. 172, 101 N. W. 377, 17 Am. Neg. Rep. 388; Higgins v. Superior, 134 Wis. 264, 13 L.R.A. (N.S.) 994, 114 N. W. 490; Allen & C. Mfg. Co. v. Shreveport Waterworks Co. 113 La. 1091, 68 L.R.A. 650, 104 Am. St. Rep. 525, 38 So. 980, 2 Ann. Cas. 471; Ancrum v. Camden Water, Light & Ice Co. 82 S. C. 284, 21 L.R.A. (N.S.) 1029, 64 S. E. 151; Niehaus Bros. Co. v. Contra Costa Water Co. 159 Cal. 305, 36 L.R.A. (N.S.) 1045, 113 Pac. 375.

Eschweiler, J., delivered the opinion of the court:

The defendant in supporting the order sustaining the demurrer

urges as follows:

First. That the complaint must* be construed as disclosing a situation wherein the defendant has but breached its contract with the city of Edgerton for the furnishing of electric current for the waterworks of said city.

Second. That in the maintaining and operating of such waterworks system-so far, at least, as to its use in extinguishing fires-the city of Edgerton was only performing a governmental function, and for default therein such city incurs no liability whatsoever.

Third. That inasmuch as defendant's connection with such services is based upon its contract with the city, the defendant also cannot be held liable, though engaged in furnishing but part of the necessary service for the purpose of extinguishing fires, just as water companies conducting the entire waterworks system under contract with the city have been held not liable for failure to keep up, according to con

tract, sufficient pressure in the water mains.

No question can well be raised but that under the established doctrine in this state, as well as almost universally elsewhere, under no construction to be given to the facts alleged in the complaint, could there be a liability established as against the city of Edgerton for the loss occurring to plaintiff by the interruption in the service being rendered by the city in extinguishing the fire in plaintiff's building.

In Hayes v. Oshkosh, 33 Wis. 314, 14 Am. Rep. 760, where sparks from the city's fire engines, then being carelessly operated in the putting out of a fire in a neighboring barn, set plaintiff's store afire and damaged his goods, it was held that, the city being then in the performance of a public service in which it has no particular interest and from which it derives no special benefit, its firemen were acting not as servants or agents, but as public officers, and that there was no liability as against the municipality in the absence of a statute to that effect.

The same doctrine was upheld in Manske v. Milwaukee, 123 Wis. 172, 101 N. W. 377, 17 Am. Neg. Rep. 388, where plaintiff was injured by the negligence of an employee of the fire department in carelessly moving a pair of scales used in weighing coal for the city fire department; again, in Higgins v. Superior, 134 Wis. 264, 13 L.R.A. (N.S.) 994, 114 N. W. 490, where the injury occurred through the negligence of a known incompetent driver for the city fire department; again, in Engel v. Milwaukee, 158 Wis. 480, 149 N. W. 141, where the city was held not liable for an injury caused by the negligence of the driver of the automobile used in the department of the fire and police alarm system.

That such view is in accord with the overwhelming weight of authority in this country is clearly indicated from the cases listed in 9 A.L.R. 143. But one state in recent years has held to the contrary, and by a decision in 1919 the Ohio su