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EDWARD DAVIS, SR. & ROSIE L. DAVIS v. CITY OF LEXINGTON

JULY 15, 1987

EDWARD DAVIS, SR. & ROSIE L. DAVIS
v.
CITY OF LEXINGTON, MISSISSIPPI



BEFORE ROY NOBLE LEE, SULLIVAN and GRIFFIN

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

Edward Davis, Sr. and Rosie L. Davis filed suit in the Circuit Court of Holmes County, Mississippi, against the City of Lexington, for damages resulting from the loss by fire of their home in the city. The lower court sustained a Rule 12(b)(6) motion, Miss. R. Civ. P., and dismissed the complaint. The Davises have appealed here, assigning the following errors committed by the court below:

I. THE APPELLANTS' NEGLIGENCE ACTION AGAINST THE CITY OF LEXINGTON, MISSISSIPPI, IS AUTHORIZED BY MISS. CODE ANN. 21-15-6 (1972), AS AMENDED.

 II. THE APPELLANTS' COMPLAINT STATES A CLAIM OF ACTION FOR NEGLIGENCE AGAINST THE CITY OF LEXINGTON, MISSISSIPPI, SATISFYING THE NECESSARY ELEMENTS OF DUTY, BREACH OF DUTY, PROXIMATE CAUSE AND DAMAGE, AND THE COURT BELOW ERRED IN DISMISSING THE APPELLANTS' CAUSE.

 III. THE QUESTION OF THE NEGLIGENCE OF APPELLEE IS FOR THE JURY TO DECIDE.

 Allegations of the complaint are sparse. It states that: "On or about April 27, 1984, a fire started at and spread from the house next door to the house of plaintiff . . .; that The Fire Department of the City of Lexington negligently failed to respond to repeated calls about the fire, . . . not arriving until the fire was well under way; that upon arriving at the scene of the fire, the Fire Department negligently failed to locate the nearest fire hydrant and negligently failed to attach the fire truck to the hydrant in a timely manner; and that the Fire Department of the City of Lexington negligently failed to take steps to prevent the fire from spreading to plaintiffs' home." Appellee's first defense, which was sustained by the lower court, stated that the complaint fails to state a claim upon which relief can be granted.

 Appellants' answers to interrogatories propounded to them by the appellee stated that (1) approximately one hour elapsed between the first notice of the fire to appellee, and when the fire department responded to the call; (2) that the fire department failed to locate the hydrant in a reasonable fashion, driving around looking for it; and (3) that the fire department should have responded to the call in a timely manner, located and been aware of the location of the nearest fire hydrant immediately, hooked up the hose in a timely and

 knowledgeable manner, used the hose in a timely manner, and applied water to the appellants' home in order to prevent the spread of the fire.

 The appellants rely upon Mississippi Code Annotated 21-15-6 (Supp. 1986) as authority for partially abolishing immunity and authorizing the suit. This section follows:

 Municipalities are hereby authorized, in the discretion of the governing authorities, to purchase general liability insurance coverage, including errors and omissions insurance for municipal officials and municipal employees.

 Nothing contained herein shall be considered as a waiver of immunity in whole or in part as to any governmental function attempted or undertaken by the municipality except that where the municipality has liability insurance coverage as to any action brought against it, then such action may be maintained against such municipality, but any recovery in such action shall be limited solely to the proceeds of any such liability insurance coverage and a judgment creditor shall have recourse only to the proceeds of such liability insurance coverage. Any judgment rendered in excess of the limits of such insurance shall, on motion of the court, be reduced as to the municipality to the amount of said liability insurance coverage but not as to any joint tortfeasor, if any. No attempt shall be made in the trial of any case to suggest the existence of any insurance which covers in whole or in part any judgment that may be rendered against any municipality.

 Municipalities are hereby authorized, in the discretion of the governing authorities, to purchase errors and omissions insurance for municipal officials and municipal employees.

 This Court has consistently held that operating a fire department is a governmental function, rather than a proprietary function. White v. City of Tupelo, 462 So.2d 707 (Miss. 1984); City of Hattiesburg v. Geiger, 118 Miss. 676, 79 So. 846 (1918). In Smith v. City of West Point, 475 So.2d 816 (Miss. 1975), this Court recognized the validity of the above statute, but held that the insurance in effect in the City of West Point did not cover the occurrence of which appellant there was complaining. In the case sub judice,

 appellants charged in the complaint that appellee maintains general liability insurance which covers loss caused by the negligence of fire department employees. A copy of the policy of insurance was not exhibited to the complaint, nor was it introduced in the record. The court should have permitted ...


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