Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1882-03-06

An Important Decision Affecting DAM
age Suits Against the City ~forscarcity
OF Water. /.

An Important Decision Affecting Dam
age Suits Against City orScarcity
OF Water. !,
Last spring the large furniture factory
of g. Mendel & Co. was consumed by fire.
During that and another fire which oc-
CURED the same night, there was a marked
scarcity Of water, and the firm mentioned
was of the opinion that had the city furn-
ished an abundance OF water, the loss
might nave been ayerted. Under this be-
lief,tthey commenced a n action against the
city, fixing their damages at $4,000. n
declaration was filed and the defendants
duly entered their demurrer, and upon the
latter Judge Jacob rendered an opinion on
Saturday. Asitwill be Of interest in view
of future actions OF this character, a Synop'
sis is given: .,
oT6e City OF Wheeling was authorized
by its charter to adopt measures to prevent
accidents by fire. To carry out this power
IL was lust rs necessary to procure a supply
of water, rs it was 10 provide engines, hose
and other apparatus; and on principle
there woHld be no greater
reason for holding it liable for negligence
with respect TO the supply OF water, than
for negligence in the use OF its engines and
hose; while the declaration AYERS that the
city owns and uses its water works for
profit, yet, l think it may finally he gath
cred from the declaration. that il uses its
water works for two distinct purposes: the
supplying of water to the inhahitants for
charges, rents of compensation being one
purpose, and the extinguishment OF fires
being the other.
Repeated efforts have been made for
losses from fires, resulting from insufficient
supply OF water. or negligent management
of fire engines. or from both causes combin-
ed, hut the courts nave uniformly refused
such relief. Patch W. Erie. 60 Pa. st. 42O.
Wheeler VS.. Cincinnati, 10 Ohio ST., ~.
Foster W. Chattanooga, 3 Lou, y. fainter
VS.. Worcester. l23 Mas. 3lt. Heller VS..
Sedalia, 53 Mo-. l5a. Davis W. Montgomery,
81 Ala, $50. Yale VS. New Orleans, - La,
Sum-. 39k. .
They held that the fire department per-
tanned to the public, discretionary powers
OF the municipal corporations: and in all
these cases relief was refused OH this ground,
except in Putch V. C~ovington, in which
the decision was based on the remOteneSS
OF damages.
THE learned Judge. in concluding his
opinion in Foster VS.. chattanooga, ) Led.
43. says: The inclination of the courts
has been not to press the pecuniary liabili-
ty of municipal corporations, WHICH is dis
tinctly recognized when the duty is a cor
porate one. absolute and perfect, and Ow-
ing to an injured party, to cases where a
duty is assumed not for the corporate ben
eft. but the common good. They have re-
fused to hold the city for the costs OF its
police officers, although they are appointed
BY il. or for the acts or negligence of its
agents and employees in charge of patients
in public hospitals, for misconduct of mem
bers OF the fire department or for the city'S
own neglect To provide suitable engines or
fire apparatus. or to keep in repair public
c~isterns, or to continue the supply Of water
to particular ~hydrantS. The reason is,
that the hazard OF pecuniary loss might
prevent the city from assuming duties,
which though not strictly corporate, nor
essential TO corporate existence, largely sub
serve the public interest. The supply OF
water for the extinguiahment OF fires is
precisely one OF those acts which bring
no profit to the corporation, hut are emf
ncntly humanitarian
1T is admitted that the charter does not
make ii the imperative duty OF the city to
supply water. and the mere authority to
establish Il fire department does not make II
so, or in the language uf the court in Heller
vs.. Sedalia, it mas not the intention vi the
Legislature in comforting power on the city
to establish q fire department to make 1t IN
insurer for losses by fire
Alters review Oi many authorities which
had been cited. THE conclusion is reached
that case, supposed 10 be- analogous. in
which a recovery was had, were eases OF
miSfeuSaHcc."
Ii j. the intention of the prosecution TO
file all amended declaration and, i'll the
event OF the same decision, Ia carry the
,4aS.. IA q hiIhpr court