#### Sutter, Administrator, Appellant, vs. Milwaukee Board of Fire Underwriters, Respondent.

*October 24, 1916*

January *16, 1917.*

*Municipal corporations: Ordinances: Granting right of way on streets to fire patrol: Police power.*

1. Although a hoard of fire underwriters organized, among other purposes, to maintain a fire patrol is not a municipal corporation, yet such patrol, which under legislative authority assists the city in discharging a public duty and while so doing is subject to the control of the head of the city fire department, may properly be given, by a city ordinance, the right of way over other vehicles (except those carrying United States mail) on the city streets when going to or returning from a fire.

2. Although in seeking, through such fire patrol, to “discover and prevent fires and to save and preserve life and property at fires,” the board of fire underwriters is primarily endeavoring to protect its own business interests, that work is none the less a public work which, if performed by the city itself, would be governmental; and the fact that its performance is primarily induced by private interest does not affect the power of the city to protect and aid the service by passing said ordinance.

3. Secs. 1636 — 51, 1636' — 55, Stats., giving the owners of motor vehicles “equal rights upon all public highways of this state with all other users of such highways,” does not preclude the enactment of such an ordinance or interfere 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.

Appeal from a judgment of tlie circuit court for Milwaukee county: F. C. Eschweilee, Circuit Judge.

*Affirmed.*

Action to recover damages for tbe death of Louis R, Schultz, aged twenty-four, who was killed August 8, 1910, in a collision between defendant’s patrol wagon and the motorcycle of the deceased on Eleventh street in the city of Milwaukee. The jury found (1) that the bell or gong on defendant’s patrol wagon was sounded as it approached and reached Eleventh street; (2) that the patrol wagon did not approach and cross Eleventh street at an unreasonable rate *533of speed; (3) that deceased was free from contributory negligence; and (4) damages in the sum of $2,500. Judgment .for defendant was entered upon the special verdict, and plaintiff appealed.

Eor the appellant there were briefs by *Otjen & Otjen,*and oral argument by *H. H. Otjen.*They cited *Louisville B. Oo.. v. Louisville F. & L. P. Asso.*151 Ky. 644, 152 S. W. 799..

Eor the respondent there was a brief by *Quarles, Spence & Quarles,*attorneys, and *J. V. Quarles,*of counsel, and oral argument by *J. V. Quarles.*

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.

*534Tbe 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.

*535We 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.

The appellant moved for a rehearing. The following opinion was filed January 18,1917:

WiNsnow, O. J.

If, as appellant’s counsel vigorously urges, the statements of fact in the opinion in this case are absurd, then indeed they should be corrected regardless of the question whether counsel’s strictures are either in good temper or good taste. This latter question we shall leave for him to consider for himself. Counsel says in effect that the present decision is in direct conflict with the decision upon demurrer to the complaint (161 Wis. 615, 155 N. W. 127) and that either the court was wrong then or wrong now. This contention makes it apparent to us that the opinion has not been understood. It may well be that this is the fault *536of tbe writer, and it will be bis endeavor now to make clear tbe court’s position.

On tbe first appeal tbe city ordinance was not before tbe court. It stood admitted by tbe demurrer tbat tbe defendant’s servants were guilty of negligent driving, and tbe only question was whether tbe immunity granted to municipal corporations while performing governmental acts was enjoyed by a private corporation doing similar acts. Upon this appeal a new fact is presented, namely, that tbe city has attempted to grant a right of way on tbe streets to tbe defendant’s apparatus, which if valid justified tbe defendant’s servants in driving as they did, and tbe question is whether tbe city could lawfully make this grant. Upon tbe first appeal tbe question was whether tbe defendant was immune from liability for its negligence, and it was answered in tbe negative. Upon tbe second appeal tbe question is whether tbe city could give tbe defendant tbe right of way over other vehicles on tbe streets, and this question is now answered in tbe affirmative. We are not able to perceive wherein these two decisions are inconsistent. There has been no intention of overruling or in any manner discrediting tbe former decision.

Special complaint is made of tbat part of tbe opinion which states tbat tbe defendant corporation is not organized for private gain and tbat it was assisting tbe city in tbe performance of a public duty. It is said, as tbe fact is, tbat this corporation is formed by tbe insurance agencies and companies carrying on tbe business of fire insurance in Milwaukee for tbe purpose of maintaining adequate rates, and correct practices in tbat business, and incidentally of maintaining tbe fire patrols in question for tbe purpose of saving property in case of fire, and thus reducing insurance losses. It is said tbat these are selfish rather than public purposes, and this also is true. It is not claimed, however, tbat tbe. •corporation has any capital stock, and it appears affirmatively *537that the expenses of the patrol service are paid by assessment on the members. Perhaps it was not a happy-use of language to say that the defendant was not organized for private gain, although it was strictly accurate in the sense that no dividends or other money returns would ever be received by its members from it. It is, however, expected that by its efforts the business of its members will be substantially .benefited in various ways. In a broad sense this may perhaps be called private gain, and in this sense the defendant is organized for private gain. It is not perceived, however, how this affects the situation. The defendant in seeking to discover and prevent fires and to save life and property at fires is primarily endeavoring to protect its own business interests, very much as many of the property owners who became members of the old-fashioned volunteer fire departments were primarily moved tó do so in order to protect their own property; but the work was and is none the less a public work, and a work which if performed by the city itself would be governmental. If the service be governmental in its nature, the fact that ttye defendant’s private interest primarily induces its performance cannot logically affect the question of the power of the city to protect and aid the service by passing the ordinance in question.

*By the Oourt.*— Motion denied.