Patch v. City of Covington
Patch v. City of Covington
Opinion of the Court
delivered the opinion of the court:
This is an action brought by the appellant against the city of Covington, to recover the value of a house w^ck, it is alledged, was destroyed by fire in consequence of the failure, on the part of the city, to keep its public cisterns in repair, and to provide the fire company of the city with hooks, ladders, and other necessary apparatus.
The circuit court sustained a demurrer to the petition, and from that judgment the plaintiff has appealed.
This court has recognized the doctrine, that where a particular act, operating injuriously to an individual, is authorized by a municipal corporation, by a delegation of power, either general or special, it will be liable for the injury in its corporate capacity, where the acts done would warrant a like action against an individual; that cities are responsible to the same extent, and in the same manner, as natural persons, for injuries occasioned by the negligence or unskillfulness of their agents in the construction of works for their benefit; and that where a city corporation is bound to keep the streets and sewers of the city in proper repair, it is liable to damages if any person be injured by its neglect to have such repairs made. (Prather vs. City of Lexington, 13 B. Monroe, 561, and the cases there cited.)
Hence it follows that vrhere, as in the case cited by counsel for appellant, of Henly vs. Mayor of Lynn Re
This principle, as stated by Greenleaf, is that “the damage to be recovered must always be the natural and proximate consequence of the act complained of. This rule is laid down in regard to special damages, but it applies to all damage. Thus, where the defendant had libeled a performer at a place of public entertainment, in consequence of which she refused to sing, and the plaintiff alledged that by reason thereof the receipts of his house were diminished, this consequence was held too remote to furnish ground for a claim of damage.” (Greenleaf on Evidence, section 256.)
“But it is far easier,” says Sedgwick in his Treatise on the Measure of Damages, “to lay down a general proposition than to apply it to á particular case. When we come to analyze causes and effects, and undertake to decide what is the natural result of a given act, and what is to be regarded as unnatural, what is proximate and what remote, we shall find ourselves involved in serious difficulty. Many things are perfectly natural, and yet very remote consequences of a particular act; many other results are proximate, nay, immediate, and yet so little to be expected that they can scarcely be pronounced natural. Nor does the requirement that the. damage be both natural and proximate relieve us from the difficulty. The rule is not much more definite when it is said that the damages must be the legal and natural consequence of the act complained of. As in a case in
The learned author has collected a great number of cases on this subject — English and American — in all of which the courts profess to recognize and adhere to the rule stated, though the decisions exhibit some want of uniformity, resulting chiefly, however, from the different classes of cases to which it has been applied. In actions of tort, for instance, it has been hold, even where vindictive damages cannot be demanded, that the degree of fault will govern not onty the question of liability but the amount of remuneration ; and accordingly as the act is more or less morally wrong, so the courts will make the guilty party responsible for the consequence, more or less remote, of his conduct. The effect of this, says Sedgwick, will be to introduce into the subject of wrongs the most perplexing distinctions; the tribunal will, in each case, have to decide not only a legal but a moral question, and to determine, moreover, the amount of consequences for which a given amount of immorality or negligence is to be made answerable. And he concludes his able review of all these decisions by saying, that “it would be better, in all matters of tort, where the wrong is not so flagrant as to warrant vindictive damages, to adhere as closely as possible to a fixed rule; to declare that in no case shall the measure of relief depend on the motive of the party, and that, the remuneration is, in all cases, to be limited to the natural and proximate consequences of the act.”
Do the facts set forth by the appellant in the case now before us, make out a cause of action within the rule or principle we have been considering?
He alledges that the fire by which his house was destroyed, originated in a small frame building adjacent to his own; that the firemen had reached his house before the flames had communicated to it, and would have been, as he is informed, believes, and charges, able to save it, but that in consequence of the failure and neglect of the city council to keep in repair the public cisterns in the vicinity, there was not sufficient water with which to extinguish the flames, and his building was therefore destroyed; that there were three public cisterns in the vicinity, but neither was in a condition to hold much, if any water, owing to the neglect of the city authorities, whose duty it was to keep them in repair; that they had undertaken to do this, taxing the appellant and other citizens for that purpose, and that they were notified that the cisterns required repairing; that the city had organized a fire department at considerable cost to the inhabitants, but had failed to provide the necessary hooks and ladders for its use, in consequence of which the firemen had been unable to pull down the adjacent frame building before the fire reached his house; that in consequence of this two fold negligence, his house, which was worth $5000, was consumed, and he therefore prays judgment for that sum.
It is not charged that the fire -was the consequence, remote or proximate, of any act or omission on the part of the city. The legal import of the allegation is that the plaintiff’s house was set on fire by the frame ; that the destruction of his property which resulted from this cause would, in the opinion of plaintiff, have been averted by the firemen, if the cisterns had not been out of repair through the negligence
Upon the same principle, if the council had negligently permitted a ditch to remain open in the street, whereby the plaintiff’s servant, in attempting to cross it, was killed or maimed, he could recover against them to the extent of the injury. But suppose the plaintiff’s servant is suddenly attacked with a dangerous malady requiring the immediate aid of a physician; that one is sent for, who could have reached his paiient in time to save him, but was prevented by falling into the ditch thus negligently left open, whereby he was wounded and was unable to proceed further, in consequence of which the slave died; or, as in the case put by this court in Bosworth vs. Brand, suppose the slave of one goes to the farm of another, and is not driven away in the time prescribed by the statute, and in conse
Upon a careful examination of all the authorities within our reach, in which this perplexing question has been discussed, we conclude that the only reasonable principle to be deduced from them all is that to which we referred in the outset: that the damage to be recovered must be the natural and proximate., eonsequence of the act or omission complained of; that the petition in this case, giving to every allegation oi'fact the effect to which it is entitled, on demurrer, fails to show a cause of action, and that the demurrer was, therefore, properly sustained. We have arrived at this conclusion, not without some hesitation, arising chiefly from the difficulty of determining, from the multitude of adjudged cases, the precise relation, as defined by the terms, natural and proximate, which should exist between the illegal act or omission, and the resulting damage, in order to entitle the injured party to redress.
The judgment is affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.