126
THE GREEN BAG
water to its citizens and makes charges therefor, against the city to recover for damages which re it acts in its private capacity, even though such sulted from the flooding of plaintiff's cellar by rea son of the bursting of a water main, a part of the waterworks system is also used for the extinguish waterworks system owned by the City of Evansville. ment of fires, and under these circumstances it The break occurred while the fire department was stands upon the same footing as would an indi engaged in extinguishing a fire, and when extra vidual or private corporation, and is liable for in juries to adjoining property resulting from the power and pressure had been added at the pump negligent operation or maintenance of the plant. ing station. The plaintiff alleged first, after set ting out the facts as to the break in the pipes and The court also cites the case of Eisenmenger v. the ownership of the waterworks system by the St. Paul Water Board, 44 Minn. 457, 47 N. W. 156, city, that the city was notified immediately after where the municipality was liable for injuries tothe break, but refused, through its agents, the adjoining property resulting from its negligence fire department, to shut off the water which was by causing adjoining land to be overflowed; Baker running through the broken pipe. He also alleged v. Northeastern Borough, 151 Pa. 234, 24 All. that as the owner of the waterworks system it 1079, for negligently permitting water to escape was the duty of the city to properly and regularly from the pipe whereby a horse was frightened; inspect the same, but that they had neglected to Hand v. Brookline, 126 Mass. 324, for imdermindo so, and that by reason of the defective, cracked, ing a highway by water leaking from the pipes, corroded and worn out condition of the water and Yik Hon v. Spring Valley Waterworks, 65 Cal. 619, 4 Pac. 666. for throwing a stream of plug where the break occurred, and by the care lessness of the city's agents in neglecting to repair water into adjoining rooms. Taking up the ap such worn out appliances, the pipe burst under plication of these doctrines to the case in hand, the unusual pressure. The rule is announced by the court points out that the use which was made of the waterworks system at the time of the in the court as firmly settled that a municipal cor jury complained of, that is, extinguishing a fire, poration is, for the purposes of its creation, a gov ernment, possessing to a limited extent sovereign was a purely governmental one, and for an injury powers which in their nature are either legislative incidental thereto there is no right of recovery. But upon the question of the negligent mainten or judicial, and may be denominated govern mental or public. Being public and sovereign in ance of the plant, the court says that it was in their nature, the corporation is not liable to be cumbent upon the city to see that the plant was sued either for a failure to exercise them or for so constructed that it would be reasonably safe errors committed in their exercise. Other duties for public or private use, and that reasonable care in maintaining the plant required that the pipes of a purely ministerial character are expressly en joined by law upon such municipal corporations, should be in condition to resist the high pressure or arise by necessary implication, and they are to which they were subjected during fires, and that responsible for any damages resulting from a the city was directly charged with negligence in failing to replace parts of the waterworks system neglect to perform such duties, or for their per formance in an improper manner. Brinkmeyer which had become defective, corroded, and worn out, and that recovery might be had against the v. City of Evansville, 29 Ind. 187, City of Ander son v. East, 117 Ind. 126, 19 N. E. 726, Vaught- city for such negligence man v. Waterloo, 14 Ind. App. 649, 43 N. E. 476, are cited. In the extinguishment of fires, and in making arrangements therefor, the municipality PHYSICIANS AND SURGEONS. (MENTAL HEALERS — REGULATION BY STATE.) acts in its governmental capacity, and is not liable IOWA SUPREME COURT. for damages caused by the negligence of its fire department. Nor is it liable for the negligent con The interesting question was raised in the case struction, maintenance or use of appliances used of State v. Heath, 101 Northwestern Reporter solely for the extinguishment of fires. Citing 429, as to whether a magnetic healer was re Robinson v. City of Evansville, 87 Ind. 334; Davis quired to take out the license which the state v. Lebanon (Ky.) 57 S.W. 471; Wright v. Augusta, law prescribes should be taken out by all persons 78 Ga. 241; Mendel v. Wheeling, 28 W. Va. 233; who shall publicly profess to be physicians. The Butterworth v. Henrietta (Tex. Civ. App.) 61 law seems to deal with three classes, namely, all S. W. 975; Hayes v. Oshkosh, 33 Wis. 314; Ed- who profess to be physicians and assume the gerly v. Concord, 61 N. H. 8; and Tainter v. Woos- duties, all who make a practice of prescribing and ter, 123 Mass. 311. It is further pointed out, how furnishing medicine for the sick, and all who ever, that where a water system is conducted by a publicly profess to heal under circumstances in municipality partly for profit, as where it supplies dicating that the profession is made with the idea
