The Evansville journal., 1868-04-28
Especially Reported for The Evansville
Journal
SUPREME COURT DECISION.



Brinkmeyer and others vs.. The
City of Evansville. Appeal from
Vanderburgh Circuit Court.
ELLIOTT, J.-Complaint by Brink
meyer and others, partners, doing
business in the firm name of Brink
meyer & Co., against the City OF
Evansville, to recover the value of
building belonging to the plaintiffs,
situate on lots within the corporate
limits Of said city, used as an iron
foundry, together with certain ma
chinery and other property therein,
which were destroyed by fire. The
Court sustained a demurrer to the
complaint, and rendered final judg-
ment for the defendant for costs.
The plaintiff excepted, and appeals to
this Court. The ruling Of the Court
on the demurrer Is the error assigned.
The complaint alleges that the city
of Evansville is a corporation, organ
lied under a special charter, approved
January 27, 1847; that among the
powers conferred on the Common
Council of said city are: First, To
Ordain, establish and put In execution
such rules, bylaws, ordinances and
regulations as shall be deemed proper
or necessary for the good government
of the city, and the we'll being Of the
inhabitants thereof, &c" Second.
g" Especially to make, establish and
regulate public wells, cisterns, reser-
vOirs and pumps, &c, to erect engine
houses, to prevent and guard against
damage by fire, to purchase fire en-
gines and fire apparatus, to organize
fire companies, and regulate and gov
ern the same, and to prescribe and
regulate the duties and conduct Of
members Of fire companies, and other
persons, in relation to fires"
That the Common Council, in the
exercise of the powers vested IN
them, purchased and provided sundry
engines, to be operated by the hands
of men, and organized companies to
propel and operate the same, and also
purchased sundry steam engines to be
used In eXtinguishing fires, and en-
ployed engineers, captains of cOmpa-
nies, hose directors and other persons
to protect the property in the city
against damage by fire, and to extin- |
guish fires occurring within the city. 1
That the Common Council, in exer- |
cising the powers aforesaid, regardless |
Of their duty, negligently and care /
lessly failed to provide proper supplies /
Of water, or good and efficient engines, I
or to cause the engines provided to |
be kept in repair and furnished with |
a sufhcieney of good hose, and also |
negligently and carelessly employ |
ed unskillful, inefficient, careless
and incompetent persons to man. |
age, control, use and operate |
said engines and hose, and negllgently |
and carelessly failed to provide proper I
and necessary means Of propelliug
said engines from place to place In /
the city. That while the Common /
Council were so careless and negli- I
gent, &C., another house, at least fifty t
feet from the house of the plaintiff. /
was consumed by fire, and BY reason 4
of fthe failure ofthe Council to provide /
water, or to provide and keep in repair I
a sufficient number of good engines. /
properly supplied with good hose. and I
by reason of the unskillfulness. care
lessness, lncOmpetency, and negligence
Of the persons employed to control /
and operate the engines, and by I
reason OF said engines aud hose I
being insufficient in number, and I
inefficient, defective, and out of I
repair, the heat flames, and fire
from the other house were com
munieated to, ignited and consumed I
the house and property of the plain
tiffs. Wherefore they demand judg- /
ment for $4,000.
The appellents' counsel state the
following two legal propositions:
lst. Nhen by law a municipal cor
pOratlon possesses power to be exer-
eised for the public good, whether the
language comforting the power be i'm
peratlve or persuasive, it IS incum-
bent upon the corporation to exercise
such power whenever, aud as soon as
those who exercise the legislative
functions of the corporation, shall
deem it practicable to properly exc
cute it.
ID. That when the legislative au-
thority has determined that it is prac-
ticab and expedient to execute
power conferred, and the corporation
enters upon its execution, the corpo-
ration and its officers and agents are
bound to exercise reasonable aud or
dInary care, skill and diligence in
executing it, and must respond in
damages for any failure to do so.
Several cases are cited in support
OF these propositions. The first Of
which is Stackbouse, Us. The Cffy of
Lafayette, 26 Ind, II. which was an
action against the city for dam
ages occasioned by back Mater