The fire protection service rendered by a city to its inhabitants has generally been classed as a gratuity. If so regarded, the plaintiff, at the time of the injury to the water main, had no right which could be defended before a legal tribunal. The courts have properly held that one has a cause of action against a third party who wrongfully interferes with the city's fire fighters when they are endeavoring to extinguish a fire destroying his property. The Wisconsin court in the Concordia Case went further, I think erroneously, and held the trespasser liable who injured the water system a week before the fire occurred. The opinion of the court in the case at bar goes still further and holds the servant of the city liable for fire loss suffered by the householder due to accidental injury to the city's water main while engaged in the city's business. And this too, notwithstanding the city's negligence in consuming eight hours in repairing the main, which the court found should have been repaired in two hours.
The effect of this decision will be far reaching. It establishes the rule that a municipality, the only power with authority or control necessary to repair its water system, may negligently take four times as long as the period required to make the repairs without such negligence constituting such intervening efficient cause as would interrupt the primary cause of the injury. As "practical considerations and policy" seem to be the touchstones of the majority opinion, it may be well to consider to what results these holdings will lead. A motorist who accidentally broke a hydrant might do all that he could do toward curing the wrong, i.e., settle with the city for the injury to its property, and still be held responsible for a million dollar fire loss starting hours after the injury should have been repaired. He would have no power to repair the hydrant, and if he paid the city for the damage to its property, that would not relieve him from liability to the property owner or insurance company suffering fire loss, due to the broken hydrant, under this newly found right in the householder.
Another result will be to increase the cost of public works of municipalities. In fact the appellant in this case may find that it *Page 228 will be benefited by this decision, in that it eliminates the competition of poor men. Only the strong financially will be able to procure surety bonds where the liability may run into hundreds of thousands of dollars. One result of the decision will be to partially transfer from the property owner or insurance company to the taxpayer of the city the burden of fire risk, since the contractor or bonding company will reckon the risk of injury to the city's water system and its concomitant liability to others, and add this item to the estimate of cost, before entering into a contract with the city. The taxpayer will foot the bills in the end.
This decision breaks so much new ground that it may be said to establish a new policy, and while it may be in keeping with the spirit of the day, it is of such doubtful wisdom, and so far reaching, that the court, in my judgment, would better leave the making of such a change in policy to the Legislature.
For the reasons stated I dissent.