The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1882-03-06
DEMURREE SUSTAINED.
Thn Case Of MeBd6I 4 CO. ". ne clio
Thrown Oat Of Court.


Jadgs Jacob on Saturday rendered bis de-
eiSion upon the demurrer FLED By City 60
iieitor Caldwell TO the complaint fled By
the attorneys for the plaintiffs In the case Of
Nsndel 4 Co. against the City Of Wheeling,
asuitfo -. 900 damlges for failure to protect
the eomPlainabtS furniture factory FROM de
stEuetion By hfe. The decision sustains the
demurrer. which, 81 least for the time being,
thrown che case out Of court. Ex.Attorney
GeneFal White, Of counsel for Msndel 4 Co,
however, says th9t the bill will be amended
audiTe-entefed.
The decision rendered by Judge Jacob on
Saturday u In substance aS follows:
The City Of Wheeling vas authorized By
it charter 70 adopt measures 70 prevent acci.
dents by Gre. To carry out this power, Il
was iust as Necessary 10 procure q supply Of
water, as It was 70 provide engines, hose and
other apparatus, and on principle, there
would BE- no greater reason for holding Il
liable for negligence With respect 10 the sup.
ply OF water, than for negligence In the use
Otis engines and hose. While the declaration
aver that the city owns and uses It's water
works for profit yet think It may finally
be gathered from the declaration, that Il uses
It's water works for two distinct purposes; the
supplying Of wafer TO the inhabitants for
changes, rents or compensation being one pur.
Pose, and the e1tinguiShment Of fires being
the other.
Repeated efforts have been made for
loses from tires, resulting from insufficient
supply Of water, or negligent management OF
tiFe engines, or from both causes combined,
but the courts have uniformly refused such
relief Patch Va. Erie, ~ Pa, ST., 100
Wheeler vs. Cincinnati, 10 Ohio ST, 10. Pos
ter W. Chattanooga, ), Lou, ~ fainter VI
Worcester, l23 Mass, 81. Heller Va Seda.
liz, 81 No, l59. Davis vs.. Montgomery, 81
Ala, i39. Yale ~ New Orleans, Is La, Sun,
39i.
They held that the FIRE department per.
tanned 70 the public, discretionary powers Of
the municipal corporations; and In all these
cases relief was refused on this ground. ex.
eept In Putch Va Coyingten, 10 which the
decision was based on the remotenes Of
damages
THE learned Judge in concluding his
opinion 10 Foster VS. Chattanooga, Led, 45,
sayS The inclination Of the courts has
been not TO pres the pecuniaTy liability Of
municipal corporations, which Is distinctly
recognized when the duty Is a corporate one,
absolute and perfect, and owing 10 an injured
party, 70 cases where duty q assumed not
for the corporate benefit, but the common
good. They have refused to hold the city
for the acts Of its police officer, although
they are appointed by II, or for the acts Or
NEGLIGENCE Of its. agents and employees In
charge Of patientsin public hospitals, for
miEconduct OF members Of the FIRE DEPART.
ment, or for the city's own neglect to provide
suitable engines or fire apparatus, or 70 keep
in repair public cisterns, or to continue the
supply Of water TO particular hydrans. The
reasoniy, that the hazard Of pecuniary loss,
might prevent the corporation from aSsum.
ing duties, which though not strictly corpo-
rate, nor essential TO corpOrate existence
largely subserves the public interests. The
supplying Of water for the extinguishment
oil fires Is preciely one Of those acts which
bring no profit TO the corporation, but an
emlnenuy Humanitarian.
1T is admitted that the charter does not
make it the imperative duty OF the city TO
supply water, and the mere authority to es-
tablish a fire department does not make 1t
20, or in the language Of the court In Heller
rs. sedalia, 1t was not the intention Of the
Legislature, in comforting power on the city
to establish FIRE department, to make 1t an
insurer for losses by fire.
After review OF many authorities which
bad been cited, the conclusion Is reached
that cases supposed to be analogous, In
which a recovery was had, were cases OF
| mUfedsdncen