# Canade, Inc. v. Town of Blue Grass > Supreme Court of Iowa · March 16, 1972 · 195 N.W.2d 734 URL: https://www.frixlaw.com/law-library/cases/9858922 ## Case - **Full name:** CANADE, INC., A/K/A Lake Canyada, Inc., Appellant, v. TOWN OF BLUE GRASS and Paul Ehrecke, Appellees - **Court:** Supreme Court of Iowa - **Decided:** March 16, 1972 - **Citations:** 195 N.W.2d 734; 1972 Iowa Sup. LEXIS 783 - **Precedential status:** Published - **Opinion:** Dissent by Reynoldson - **Judges:** Legrand, Reynoldson, Reynold-Son, Becker, Harris - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9858922 ## How later opinions describe it (automated extraction) - recognizing the rule of governmental immunity applied to a claim of negligence against a municipality ## Opinion text REYNOLDSON, Justice (dissenting). Defendant town asserts that under the authority of § 368.11, The Code, 1966, it imposed a membership fee as a “condition” upon which its fire department would answer fire calls outside the corporate limits. An answer to interrogatory disclosed the set fees (good for the life of the most recently purchased fire truck) were: Tract under ten acres, $30; more than ten acres, $60; business establishments, $100. Separate memberships were purchased by owners of mobile homes established in various mobile home parks, including the plaintiff park. When Dr. Fred Glade, president and stockholder of plaintiff, attempted to secure membership for the set fee of $100, he was refused. When he finally acquiesced in a demand for $1500 he was met with a demand for $3000. Negotiations were continuing when Dr. Glade went on vacation, during which the fire occurred. Defendant municipality denies operating in a proprietary capacity, but obviously it was more interested in soaking this applicant than in soaking the subsequent fire. When the fire broke out, plaintiff’s manager had defendant town’s fire department called. The caller told the answering fire department member the fire was in the utility house on plaintiff’s premises and that a fire truck was needed. She was informed the truck would be right out. Relying on this assurance, no other fire departments were called. After defendant town’s fire truck arrived at the scene the firemen watched the fire for about ten minutes, then departed without attempting to extinguish it. When they left, the fire was still confined to the boiler room. The Buffalo fire department, called after those firemen had gone, arrived to' face a raging inferno. *738 The majority opinion states the department’s captain in charge, Ehrecke, determined upon reaching the scene plaintiff was not a subscriber and ordered his men to depart. We find no support for this in the record. The motive of the department in answering the fire call and then withdrawing from the scene is not disclosed. There is ample proof the fire department knew before starting to plaintiff’s property that plaintiff was not a member or subscriber. In plaintiff’s division I, and by incorporation of paragraphs in division II, plaintiff pled the implied agreement, arising out of the phone call, that defendants would use their best efforts to extinguish the blaze, and plaintiff’s reliance thereon. In division II plaintiff further alleged defendants were negligent. Plaintiff alleged they willfully and wantonly lulled plaintiff’s agents into a false sense of security by coming to the fire with the necessary men and equipment and then, with full knowledge no other fire department was present to fight the blaze, left the scene while the fire burned unchecked and spreading. I. Defendants’ first and only line of defense in this cause, adopted by trial court, is the following sentence from § 368.11, The Code: “They [municipal corporations] may provide conditions upon which the fire department will answer calls outside the corporate limits and outside of the territorial jurisdiction and boundary limits of the state of Iowa, and the corporation shall have the same governmental immunity as when operating within the corporate limits.” I fail to see the applicability of this section to the facts in this case. The statute does not extend immunity in all situations. Obviously this one-sentence tandem authorization and immunity would permit the municipality to provide for extension of fire service by subscription to persons and corporations located outside the town or city limits. Fire service under such subscriptions or other systematic arrangements would be protected by the same governmental immunity as service within the city limits. This is the only logical interpretation the phrase “provide conditions” can be given. But defendant town admits the case before us does not fall within the systematic arrangement it had provided for extending its fire service beyond its corporate limits: plaintiff had not paid the subscription demanded. Clearly, defendants’ fire call here was not pursuant to any condition provided by the city. This case thus falls outside the immunity extended in the contemplated and usual circumstance. Liability of defendant municipality in the proprietary vis-a-vis governmental capacity is therefore not affected by § 368.11. The corporate defendant itself asserts that the circumstances which would immunize a town from liability outside its limits did not exist in this case. Defendant town could not have been exercising a governmental function outside its town limits when in violation of its own conditions for extending its fire service in such area. Still more difficult to accept is majority’s premise that a governmental purpose is being served by a fire department which answers a fire call outside its corporate limits, makes no attempt to fight an extinguishable fire, and functions merely to postpone the arrival of another department. No authority cited by majority addresses itself to a similar factual situation. Had defendant town fought the fire we would have speedily recognized a suit by it against plaintiff for the value of its services, on the basis of an implied contract arising out of the telephone call. Plaintiff’s claim of implied contract or agreement on the part of defendants to fight the fire, and its reliance thereon, actually foundations its case in tort. Stripped of governmental immunity, defendants could *739 be found liable under well established tort principles: “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.” (emphasis added) — Restatement (Second) of Torts § 323, p. 135 (1965). Even more pertinent is the comment found at page 137 of the same authority: “Where * * * the actor’s assistance has put the other in a worse position than he was in before, either because the actual danger of harm to the other has been increased by the partial performance, or because the other, in reliance upon the undertaking, has been induced to forego other opportunities of obtaining assistance, the actor is not free to discontinue his services where a reasonable man would not do so. He will then be required to exercise reasonable care to terminate his services in such a manner that there is no unreasonable risk of harm to the other, or to continue them until they can be so terminated.” Included in the cases recognizing liability for negligence in an undertaking once begun are Union Carbide & Carbon Corporation v. Stapleton, 237 F.2d 229 (6 Cir. 1956) (employer undertakes physical examination of employee and fails to disclose tubercular condition); United States v. Lawter, 219 F.2d 559 (5 Cir.1955) (plaintiff’s decedent fell from coast guard heliT copter during rescue operation); Perrone v. Pennsylvania R. Co., 136 F.2d 941 (2 Cir.1943) (plaintiff plumber injured through negligence of man furnished by defendant railroad to see that wires were de-energized when plaintiff was working near them); Conowingo Power Co. v. State of Maryland, 120 F.2d 870 (4 Cir. 1941) (failure of defendant to deaden power lines in area of plaintiff’s decedent’s work after indicating this would be done); Armiger et al. Estates v. United States, 339 F.2d 625 , 168 Ct.Cl. 379 (1964) (Navy fails to obtain flight insurance forms for deceased Navy band members); Abresch v. Northwestern Bell Telephone Company, 246 Minn. 408 , 75 N.W.2d 206 (1956) (failure to deliver to fire department plaintiff’s message his building was burning, after undertaking such responsibility); Long v. Patterson, 198 Miss. 554 , 22 So.2d 490 (1945) (failure to warn of traffic approaching the tractor plaintiff’s decedent was operating without lights, after undertaking to so warn). See also Iowa Power and Light Co. v. Abild Construction Co., 259 Iowa 314 , 144 N.W.2d 303 (1966) (defendant alleged to have breached agreement to notify power company before undertaking work in dangerous area; plaintiff’s damage action ex delicto for breach of duty founded on contract held proper). No legal principle or procedural violation mandates the harsh result reached by majority. As a matter of public policy this court should not put a stamp of approval on the entrapment of plaintiff by defendant town’s fire fighters who refused to fight. II. Plaintiff’s brief assigned error based on trial court’s judgment dismissing the cause against defendant captain in charge: “The Court erred in holding the acts of defendant Paul Ehrecke were performance of a governmental duty as a member of a volunteer fire department and as such he is entitled to be afforded the cloak of governmental immunity (R. p. 52, 11. 27-34).” As governmental immunity is not available to the defendant town, it should not extend to the individual defendant. But in any event, he could not claim the municipality’s alleged immunity. In Anderson v. Calamus Community Sch. Dist., Clinton Co., 174 N.W.2d 643, 644 (Iowa *740 1970) we again recognized and applied the applicable rule: “The general rule is thus stated in Mc-Quillin, Municipal Corporations, Vol. 4, pages 151, 152: ‘A municipal employee who commits a wrongful or tortious act violates a duty which he owes to the one who is injured and is personally liable, even though he is then engaged in a governmental function, and even though his municipal employer may be exempt from liability under the doctrine of governmental immunity.’ ” The majority opinion implies this rule is not followed because plaintiff did not articulate it. In the interests of administering justice between contending litigants, we frequently find it within our power to support a trial court’s position which is right even though based on a wrong assigned reason. Barry v. Milbank Mutual Insurance Company, 188 N.W.2d 326 (Iowa 1971); Schnabel v. Vaughn, 258 Iowa 839 , 140 N.W.2d 168 (1966). Surely this salutary concept should extend to support a litigant’s position that is right, even if all the right reasons are not advanced. I would reverse as to both defendants, and remand the cause for trial. BECKER, J., joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9858922. Public record. Not legal advice.