Johnston v. City of Grants Pass 120 Or. 364, 251 Pac. 713

COSHOW, J. —

It was in the discretion of the court to allow the complaint to be amended as was done. The amended complaint was filed before the issues were made up and the defendant was not injured thereby: Or. L., § 101; Holden v. Gulstrom, 89 Or. 133 (173 Pac. 672); Zimmerle v. Childers, 67 Or. 465 (136 Pac. 349).

It has been uniformly held that a city is not liable for the negligent acts of a fireman in the performance of his duty. Firemen are public officers and are not the agents of the city in its corporate or proprietary capacity. Their duty is governmental and they represent the public as an arm of the state for whose acts municipalities are not liable. In Wagner v. Portland, 40 Or. 389, 395 (60 Pac. 985, 67 Pac. 300), Mr. Justice Wolverton observed:

“Undeniably, municipalities, when acting through their fire departments in the preservation of property from the devastation of fire, are in the exercise of a purely governmental function, and their officers and agents represent the public, as an arm of the state, for whose acts the corporations are not liable.”

*368See, also, the authorities cited in that opinion. This seems to be the universal rule: Jones on Negligence of Municipal Corporations, 38, § 27; Fruend on Police Powers, 113, § 118; Workman v. New York City, 179 U. S. 552, 575 (45 L. Ed. 314, 21 Sup. Ct. Rep. 212, see, also, Rose’s U. S. Notes); 22 Am. & Eng. Ency. of Law (2 ed.), 916, 918, 920, 928; 13 Am. & Eng. Ency. of Law (2 ed.), 80; 19 R. C. L. 1117, § 398; Cunningham v. Seattle, 42 Wash. 134 (84 Pac. 641, 7 Ann. Cas. 805, 807, 4 L. R. A. (N. S.) 629), and notes subtended thereto.

Defendant relies upon Section 358, Or. L., as authority for holding the city liable in damages. This section has been recently construed by this court to the contrary: Gearin v. Marion County, 110 Or. 390 (223 Pac. 929); Platt v. Newberg, 104 Or. 148, 163 (205 Pac. 296). The difference between governmental and ministerial powers exercised by a municipality is clearly distinguished in an opinion by Mr. Justice Burnett in Giaconi v. City of Astoria, 60 Or. 12, 34 (113 Pac. 855, 118 Pac. 180). See, also, Humphry v. Portland, 79 Or. 430, 433 (154 Pac. 897).

“It will thus be seen that on general principles it is necessary, in order to make a municipal corporation impliedly liable on the maxim of respondeat superior for the wrongful acts or negligence of an officer, that it be shown that the officer was its officer either generally or as respects the particular wrong complained of and not an independent public officer; and also that the wrong was done by such officer while in the legitimate exercise of some duty of a corporate nature which was devolved on him by law or by the direction or authority of the corporation. 2 Dillon, Munic. Corp., § 974.” 19 Or. 496, 501.

The fire which caused the damage was set, it is claimed, by a fireman of the city. As appears from *369the excerpts set out above from the ordinance of the defendant city, the fireman had no authority to burn the grass. This particular fire was started at the request of the owner of property adjacent to the tract on which the fire was set. That owner was granted permission to burn the grass by the chief of the fire department as required by the ordinance. The fireman went to the place with a chemical truck for the purpose of superintending the burning and preventing the fire from spreading. It is argued that because the fireman himself touched the match to the dry grass the city is liable. This position is equally untenable. Under the ordinance upon which plaintiff claims the city is liable, it was no part of the duty of the fireman to set the fire. He was there for the purpose of performing his duty as a fireman by protecting property "from the spread of the fire. Even if he violated the ordinance by starting the fire the city is not liable. The city did not violate the ordinance. The city is not liable under all the authorities for an unauthorized act of a fireman in the performance of his duty: 9 R. C. L. 1118; Smith v. City of Rochester, 76 N. Y. 508; State v. Ringold, 102 Or. 401, 404 (202 Pac. 734); Smith, Modern Law of Munic. Corp., 797, § 792.

We have found no case where a municipality has been held liable in damages for the negligent act of its firemen. The plaintiff has not cited such a case in his brief. The only case called to our attention announcing a different rule is found in the majority opinion in Workman v. New York City et al., 179 U. S. 552 (45 L. Ed. 314, 21 Sup. Ct. Rep. 212, see, also, Rose’s U. S. Notes). This case was decided according to the principles of maritime law and has no application here. Plaintiff has contented himself by *370citing cases only where the city was involved in its corporate or proprietary capacity. As clearly shown by the authorities above cited there is a wide distinction between the liability of a city in its corporate and governmental capacities. It is not necessary for us to determine in this case whether or not the city would have been liable had the council directly ordered the fire to have been set as it was. Whether the fireman was acting strictly within his official duties in setting the fire or exceeded his authority under the ordinance is immaterial for in either case the city is not liable for his acts. He is a public officer representing the public and is not an agent or officer of the city in its corporate capacity.

For appellant, Mr. James T. Cliinnoclc, Mr. H. D. Norton and Mr. Niel R. Allen.

For respondent, Mr. G. F. Pruess and Mr. Allison Moulton.

The judgment is reversed. The cause is remanded, with instructions to dismiss the case.

Reversed and Remanded,-With Instructions.

McBride, C. J., and Belt and Rand, JJ., concur.

Rehearing denied January 19, 1927.

On Petition for Rehearing.

(252 Pac. 1118.)

COSHOW, J.

A petition for rehearing has been presented urging that the court in it's former opinion did not pass upon the question presented by the appeal. It is claimed that the fire was set out on unoccupied lots without any request from the owners. *371The ordinance prescribes that the superintendent of streets shall burn grass, unless the owner of the land burns the same in accordance with the ordinance referred to in the former opinion. We have carefully re-examined the record. The record clearly discloses that the fireman who started the fire was sent to the place of fire in his capacity as a fireman, in accordance with the ordinance with a permit to the owner .of adjoining premises to burn the grass on her premises. There is no evidence at all that any attempt was made by the superintendent of streets to burn the grass in accordance with the ordinance. The question of the liability of the city for any neglect exercised by the superintendent of streets when acting under the ordinance is not presented by this appeal or by the case. The city is no more liable for the act of the fireman in starting the fire without authority than it would be if a transient or some children had started the fire. Accepting the verdict of the jury as conclusive that the fire was started by the fireman, we are constrained to adhere to our former opinion, because his act was entirely unauthorized and no attempt was made by him or any other officer of the city to comply with the ordinance directing the burning to be done by the superintendent of streets. All of his conduct was ostensibly under authority of the permit issued to the owner of the adjoining premises. The fireman personally might be liable for his unauthorized act, but the city cannot be held liable under the circumstances of the facts disclosed by this proceeding. Rehearing is denied.

Rehearing Denied.

McBride, C. J., and Belt and Rand, JJ., concur.