#### ADA L. MABE, Admx., et al. v. CITY OF WINSTON-SALEM.

(Filed 18 November, 1925.)

1. Government — Municipal Corporations.

Incorporated cities and towns within the powers given them are local governmental agencies of the State, and in the absence of statutory provision to the contrary, may not be sued for damages for the negligence of their agents and employees while discharging governmental functions.

2. Same — Torts — Negligence — Principal and Agent — Waterworks— Statutes.

A municipality is in the exercise of its governmental powers in maintaining a fire department, and an action for damages for failure to sooner extinguish a fire on the property of the owner thereof by reason of having permitted its street at the fire hydrant there to become obstructed and remain so, is not maintainable without statutory provision making them so, their exemption as to furnishing a sufficient supply of water, etc., being expressly stated in the statute. C. S., 2807. *Qorrell v. Water Go.,*128 N. C.," 375, and like cases, distinguished by Stacy, C. J.

3. Same — Proximate Cause.

Where in an action against a city to recover damages for a fire loss alleged to have been caused by permitting obstructions to remain at its fire hydrants, the proximate cause is the failure of the'city to put out the fire for which no recovery may be had, under C. S., 2807.

Appeal by plaintiff from *Sch&nck, J.,*at May Term, 1925, of Eoesyth.

Civil action to recover damages for an alleged negligent placing of curbstones or rocks around a fire-plug or hydrant, in violation of a city ordinance, whereby fire department of the city of Winston-Salem was unable, on 23 March, 1920, to save the plaintiff’s house from being *487destroyed by fire, wbicb, it is alleged, it could and would have done but for such negligent obstruction.

Tbe alleged obstruction was placed around tbe bydrant in question by agents and employees of tbe defendant city while paving a street in tbe vicinity of plaintiff’s bouse, and it was permitted to remain there for six or eight months prior to tbe time of tbe fire.

There was only a small blaze on tbe top of plaintiff’s bouse at tbe time of tbe arrival of tbe fire department, but by reason of said obstruction, some ten or fifteen minutes were consumed in removing same, before any connection with tbe bydrant could be made, and, in tbe meantime, tbe fire assumed uncontrollable proportions and resulted in tbe destruction of plaintiff’s bouse.

This action was instituted by J. W. Mabe, tbe owner of tbe bouse, who died *pendente lite,*and bis administratrix has been substituted as party plaintiff. Tbe G-eorge Washington Fire Insurance Company was adjudged to be a necessary party by order of court.

At tbe close of plaintiff’s evidence, and on motion of defendant, there was a judgment as of nonsuit, fr.om wbicb plaintiff appeals.

*John C. Wallace, Richmond Rucher and Hastings, Booe & DuBose for plaintiff, Ada L. Mabe.*

*Craige & Craige and F. L. Webster for plaintiff, George Washington Fire Insurance Company.*

*Parrish & Deal for defendant.*

Stacy, 0. J.,

after stating tbe case: It is conceded that tbe defendant, city of Winston-Salem, which owns a municipal light and waterworks system, and operates tbe same in its governmental capacity, cannot be held liable in damages for a failure to furnish a sufficient supply of either water or light. *Howland v. Asheville,*174 N. C., 749; *Harrington v. Greenville,*159 N. C., 632.

C. S., 2807, appearing in tbe chapter on “Municipal Corporations,” is as follows: “Tbe city may own and maintain its own light and waterworks system, to furnish water for fire and other purposes, and light to tbe city and its citizens, but shall in no case be liable for damages for a failure to furnish a sufficient supply of either water or light. And tbe governing body shall bave power to acquire and bold rights of way, water rights, and other property, within and without tbe city limits.”

It is also conceded that tbe defendant, in tbe absence of statutory provision to tbe contrary, is not liable for any damage occasioned by tbe negligence of its fire department. *Mack v. Charlotte,*181 N. C., 383; *Peterson v. Wilmington,*130 N. C., 76; note, 9 A. L. R., 143.

*488For the purposes of its creation, a municipal corporation is an agency of tbe State government, possessing powers, within its limited scope of authority, which, in their nature, are either legislative or judicial, and may be denominated governmental or public. The extent to which it may be proper to exercise such powers, as well as the mode of their exercise by the corporation, within the limits prescribed by the law creating them, are of necessity entrusted to the judgment, discretion and will of the properly constituted authorities to whom they are delegated. And being public in their nature, the corporation is not liable either for a failure to exercise them or for errors committed in their exercise, unless expressly made so by statute. *Kistner v. Indianapolis,*100 Ind., 210. A city, therefore, in the absence of statutory provision to the contrary, does not by building and operating a system of waterworks or by maintaining a fire department, thereby enter into any contract with, or assume any implied liability to, the owners of property to furnish means or water for the extinguishment of fires, and for the breach of which an action in damages may be maintained. A city may not be sued for loss sustained by fire, where the wrongful act charged was neglect in cutting off water from a hydrant, but for which the fire might have been extinguished, or in failing to keep, a reservoir in repair whereby the supply of water became inadequate, or because the pipes were not sufficient or out of order, or because the officers and members of the fire department were negligent in the performance of their duties. 3 Dill. Mun. Corp., p. 2300. The extinguishment of fires is a function which a municipal corporation undertakes in its governmental capacity, and in connection Ivith which, in the absence of statutory provision to the contrary, it incurs no civil liability, either for inadequacy in equipment or for the negligence of its employees. 19 R. C. L., 1116; *Scales v. Winston-Salem,*189 N. C., 469, and cases there cited.

The principle announced in *Gorrell v. Water Supply Co.,*124 N. C., 328, *Fisher v. Water Co.,*128 N. C., 375, *Jones v. Water Co.,*135 N. C., 544, and *Morton v. Water Co.,*168 N. C., 582, to the effect that, when a water company contracts with a city to furnish, at all times, a supply of water sufficient for the protection of the inhabitants and property of the city against fire, the company must answer in damages for loss by fire resulting from its failure to perform its contract, has no- application to the facts of the present record. Those cases rest upon the doctrine of contracts voluntarily assumed and wrongfully breached, but no such case is presented here. And it may be observed that in an action, based on such a contract, the inquiry is whether, considering the purpose, character and capacity of the waterworks, and all the attendant circumstances and agencies, the fire, which destroyed the plaintiff’s property, *489could and would baye been extinguished witb less damage if tbe contracting defendant bad complied witb tbe terms of its agreement. *Lumber Co. v. Water Suppliy Co.,*89 Ky., 341.

Appreciating tbe force and effect of tbe decisions bolding tbat a fire department, owned and operated by a municipal corporation, belongs to tbe public or governmental branch of tbe municipality so as to relieve it, at least in tbe absence of statutory provisions to tbe contrary, from liability for injuries to person or property resulting from malfeasance or nonfeasance in connection witb its maintenance and operation, tbe plaintiff has avoided any allegation of negligence relating to tbe fire department of tbe city, or tbat tbe loss was occasioned by tbe conduct of any of tbe agents or employees of this department. On tbe other band, it is specifically averred tbat tbe fire department of tbe city could and would have extinguished tbe fire but for tbe negligence of tbe defendant’s agents and employees engaged in repairing and paving its streets. Tbe plaintiff, therefore, seeks to bold tbe defendant liable upon tbe theory tbat tbe negligence of its street department, in placing rocks or curbstones around a fire-plug or hydrant, in violation of a city ordinance, was tbe direct and proximate cause of plaintiff’s loss, in tbat such negligent conduct, on tbe part of those engaged in repairing or paving its streets, made it impossible for tbe fire department of tbe city to save tbe plaintiff’s property from destruction by fire, which, it is alleged, tbe fire department could and would have done but for tbe negligence of tbe defendant’s street department.

It was said in *Jones v. Henderson,*147 N. C., p. 125, tbat tbe duty of a municipal corporation to repair its streets and to keep them in good condition is a ministerial one, and when tbe servants of a municipality undertake to perform this duty they must exercise reasonable care in so doing, or tbe corporation may be held liable for any injury proximately resulting from their negligence. *Hoyle v. Hickory,*164 N. C., 79; *S. c.,*167 N. C., 619. Tbe cases of *Bunch v. Edenton,*90 N. C., 431, *Downs v. High Point,*115 N. C., 182, *Threadgill v. Comrs.,*99 N. C., 352, and *Williams v. Greenville,*130 N. C., 93, furnish examples of tbe liability of such corporations for tbe failure to exercise or for tbe improper exercise of ministerial or corporate duties. See, also, *Dorsey v. Henderson,*148 N. C., 423; *Hull v. Roxboro,*142 N. C., 453.

But tbe proximate” cause of plaintiff’s loss was tbe failure of tbe fire department of tbe defendant city to put out tbe fire; and it is conceded tbat if tbe fire department bad not responded at all, or if it bad negligently permitted tbe water mains and hydrants to become and remain chocked and clogged witb mud, stones, etc. *(Miller v. Minneapolis,*75 Minn., 131; *Mendel v. Wheeling,*28 W. Va., 233), or was otherwise *490negligent, wbicb resulted in loss to tbe plaintiff, no recovery could be bad. Tbe language of C. S., 2807, above set out, is tbat tbe city “shall in no case be liable for damages for a failure to furnish a sufficient supply of either water or light.”

Tbe fire wbicb destroyed plaintiff’s property originated in some unaccountable way. There is no contention tbat tbe city was responsible for its origin, or tbat it committed any breach of duty in this respect. It is alleged in tbe instant case tbat tbe agents and employees of tbe street department of tbe defendant city negligently placed tbe curbstones around tbe hydrant in question; but does it not follow, as a necessary corollary, tbat tbe agents and employees of tbe fire department permitted them to remain there for six or eight months? Even if tbe logic of tbe defendant’s position in this respect be not convincing, bow is tbe plaintiff to escape tbe force of tbe statute wbicb provides tbat tbe *city*shall *in no case*be liable in damages for a failure to furnish a sufficient supply of water? let *it*be conceded, but only for *the*sake of argument, tbat tbe negligence of tbe street department was a proximate cause, or one of tbe proximate causes, of plaintiff’s loss, still this was tbe city’s negligence, and tbe city, under tbe statute, is not to be held liable in any case for a failure to furnish a sufficient supply of water. It is tbe duty of a municipal corporation, in tbe exercise of proper care, to keep and maintain its streets in a reasonably safe condition for public travel, but we have no decision in this jurisdiction bolding a city liable to suit with respect to tbe care of its streets, wbicb would include a case of this kind.

If another *tort-feasor*or other *tort-feasors,*not protected by tbe statute or otherwise, bad negligently interfered with tbe fire department while attempting to extinguish tbe fire, a different situation would have been presented, so far as might have concerned tbe question of liability of such other *tort-feasor*or *tort-feasors.*See note, 5 A. L. R., 1651. But this is not our case.

"While it is sufficient to rest our present decision on tbe statute shielding tbe municipality from liability in such cases, it is not to be understood tbat a contrary bolding would have followed but for tbe existence of this statute. Tbe pertinent authorities are otherwise. *Small v. Frankfort,*203 Ky., 188, 33 A. L. R., 692; *Hazel v. Owensboro,*30 Ky., 627, 9 L. R. A. (N. S.), 235. However, we need not discuss a supposed or hypothetical case, or one not before us.

Tbe motion for judgment as of nonsuit was properly allowed.

Affirmed.