Holloway v. Macon Gas Light & Water Co.

64 S.E. 330, 132 Ga. 387, 1909 Ga. LEXIS 118

• Court: Supreme Court of Georgia
• Decided: April 14, 1909
• Status: Published

Opinion

Fish, C. J.

(After stating the facts.) The great weight of authority is to the effect that a resident of a city can not recover of a waterworks company damages for loss by fire occasioned by the failure of such company to furnish, in accordance with its contract with the city, a sufficient supply of water to extinguish the fire. Fowler v. Athens City Waterworks Co., 83 Ga. 219 (9 S. E. 673, 20 Am. R. 313); Nickerson v. Bridgeport Hydraulic Co., 46 Conn. 24 (33 Am. St. R. 1); Atkinson v. Newcastle and Gateshead Water Works Co., L. R. A. 2 Ex. D. 441; Foster v. Lookout Water Co., 3 Lea (Tenn.), 42; Davis v. Clinton Water Works Co., 54 Iowa, 59 (6 N. W. 126, 37 Am. R. 185); Ferris v. Carson Water Co., 16 Nev. 44 (40 Am. R. 485); Beck v. Kitanning Water Co., 8 Sadler (Pa.), 237 (11 Atl. 300); Mott v. Cherryvale Water Co., 48 Kans. 12 (28 Pac. 989, 15 L. R. A. 375, 30 Am. St. R. 267); Howsman v. Trenton Water Co., 119 Mo. 304 (24 S. W. 784, 23 L. R. A. 146, 41 Am. St. R. 654); Eaton v. Fairbury Water Works Co., 37 Neb. 546 (56 N. W. 201, 21 L. R. A. 653, 40 Am. St. R. 510); Fitch v. Seymour Water Co., 139 Ind. 214 (37 N. E. 982, 47 Am. St. R. 258); Wainwright v. Queens Water Co., 78 Hun, 146 (28 N. Y. Supp. 987); Bush v. Artesian etc. Water Co., 4 Idaho, 618 (43 Pac. 69, 95 Am. St. R. 161); Akron Water Works Co. v. Brownlees, 10 Ohio Cir. Ct. R. 620; Stone v. Uniontown Water Co., 4 Pa. Dist. R. 431; House v. Houston Water Works Co., 88 Tex. 233 (31 S. W. 179, 28 L. R. A. 532); Boston Safe Dept. &c. Co. v. Salem Water Co., 94 Fed. 238; Wilkinson v. Light, Heat, and Water Co., 78 Miss. 389 (28 So. 877); Britton v. Green Bay Water Works Co., 81 Wis. 48 (51 N. W. 84, 29 Am. St. R. 856); Nichol v. Huntington Water Co., 53 W. Va. 348 (44 S. E. 290); Town of Ukiah v. Ukiah Water etc. Co., 142 Cal. 173 (75 Pac. 773, 64 L. R. A. 231, 100 Am. St. R. 107); Allen & Cunry Mfg. Co. v. Shreveport Water Co., 113 La. 1091 (37 So. 980, 68 L. R. A. 650, 104 Am. St. R. 525); Metropolitan Trust Co. v. Topeka Water Co., 132 Fed. 702; Blunk v. Dennison Water Supply Co., 71 Ohio, 250 (73 N. E. 210); Lovejoy v. Bessemer Water Works Co., 146 Ala. 374 (41 So. 76, 6 L. R. A. (N. S.) 429); Peck v. Sterling Water Co., 118 Ill. App. 533; Metz v. Cape Girardeau Water Works Co., 202 Mo. 324 (100 S. W. 651); Thompson v. Springfield Water Co., 215 Pa. 275 (64 Atl. 521); Hone v. Presque Isle Water Co. (Me.), 71 Atl. 769; Blenville Water Works Co. v. Mobile, 112 Ala. 260-266 (20 So. 742, 33 L. R. A. 59, 57 Am. St. R. 28); Becker v. Koekuk Water Works, 79 Iowa, 419 (44 N. W. 694, 18 Am. St. R. 377); Smith v. Great South Bay Water Co., 82 App. Div. 427 (81 N. Y. Supp. 812).

The reason for the doctrine is given in most if not all of these cases. This doctrine has not been adhered to in Kentucky, North Carolina, and Florida. Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky. 340 (12 S. W. 554, 13 S. W. 249, 7 L. R. A. 77, 25 Am. St. R. 536); Gorrell v. Water Supply Co., 124 N. C. 328 (32 S. E. 720, 46 L. R. A. 513, 70 Am. St. R. 598); Mugge v. Tampa Water Works Co., 52 Fla. 371 (42 So. 81, 6 L. R. A. (N. S.) 1171, 120 Am. St. R. 207). The Kentucky and North Carolina cases have been criticised in many of the cases wherein the doctrine above announced has been recognized and applied; and the reasoning in the Mugge ease and that.of the majority of the court in Guardian Trust Co. v. Fisher, 200 U. S. 57 (26 Sup. Ct. 186, 50 L. ed. 367), which seems to have been followed in Mugge’s case, is criticised in the editorial note on the last-mentioned case in 6 L. E. A. (N. S.) 1171. There is nothing new to be added on the subject, and it would be supererogatory to set forth the reasons given by the various courts in sustaining the doctrine and of those repudiating it. Moreover, the question certified must, in our opinion, be solved by following a former decision of this court. In Fowler v. Athens City Water-Works Co., supra, it was held: “Against a water company which is under a contract obligation with the municipal government (but no legal duty otherwise) to furnish a supply of water for use by the municipality in extinguishing fires, a citizen and taxpayer whose property has been consumed by reason of a breach of such contract obligation has no right of action, there being no privity of contract between the citizen and the water company, and mere breach (by omission only) of a contract entered into with the public not being a tort, direct or indirect, to the private property of an individual.” In that case, as we have ascertained from an examination of the original record of file in this court, the Mayor and Council of the City of Athens entered into a contract with one Eobinson in 1882, whereby Eobinson undertook that he would furnish at all times, for a consideration mentioned in the contract, all the water necessary for fire purposes; that he would establish 'fire hydrants to the number of 55, and would guarantee at all times a sufficient pressure to throw from any of these hydrants, through a one-inch nozzle and 50 feet of two and a half inch hose, five streams of water to the height of 65 feet. He further agreed to furnish consumers other than the city with pure and wholesome water at a rate not exceeding that in a list appended to the contract and made a part thereof. By the terms of the contract the city was to have the right to purchase Eobinson’s waterworks when the same should be completed, or at the end of each ten years thereafter, at a price to be fixed by arbitrators to be selected as provided in the contract. The city, in the contract, expressly granted to Eobinson and his successors or assigns the exclusive right to erect and maintain waterworks as contemplated in the contract, “and also the free and unrestricted right and privilege at any and all times to lay, construct, maintain, repair, and tap all mains, pipes, hydrants, and other fixtures and appurtenances in, upon, under, and through any and all streets, avenues, lanes, alleys, roads, and bridges within said city.” It was also stipulated in the contract “That it [the city] will pass, and at all times during the continuance of this contract maintain and enforce, such ordinances as may be necessary and proper to enable said contractor to construct and control his works and protect the same.” It will be seen, therefore, that the decision in that case, when construed in the light of the facts upon which it was predicated, is controlling in the present one. For the court there not only held, treating the plaintiff’s action as being one ex contractu, under the contract between the city and the waterworks company, that he could not recover, as there was no privity of contract between him and the company, but it also clearly and distinctly held that he could not recover if his action against the company were treated as being one ex delicto, that is, upon an alleged tort arising from a breach of a public duty which the company, under its contract with the city, owed the plaintiff. What was said by Chief Justice Bleckley in denial of the right of the plaintiff to recover, upon the facts alleged in his petition, if his action were treated as one sounding in tort, was by no means obiter; for it is clear from reading the statement of the case by him, and the opinion which he delivered therein, that the court did not undertake to determine whether the petition was intended to set forth a cause of action arising ex contractu of a cause of action arising ex delicto. But the court, without construing the petition the one way or the other, simply but decisively determined that whether the petition sounded in contract or in tort- it failed to state a cause of action; as the plaintiff could not recover on contract, because he was no privy to the contract which the city made with the waterworks company; and he could not recover in tort, because, under the facts alleged, there was relatively to him no breach of a public duty by the water company. With reference to this last-mentioned view or construction of the petition, the learned Chief Justice said: “There being no ground for recovery, treating the action as one ex contractu, is it better founded treating it as one ex delicto? We think not. The violation of a contract entered into with the public, the breach being by mere omission or nonfeasance, is no tort, direct or indirect, to the private property of an individual, though he be a member of the- community and a taxpayer to the government. Unless made so by statute, a city is not liable for failing to protect the inhabitants against destruction of property by fire. Wright v. Augusta, 78 Ga. 241 [6 Am. St. R. 256]; Am. & Eng. Enc. Law, vol. 7, p. 997, et seq. We are unable to see how a contractor with the city to supply water to extinguish fires commits any tort by failure to comply with his undertaking, unless to the contract relation there is superadded a legal command by statute or express law.” As will have been seen, the material facts in the case at bar are practically the same as those in the Fowler case. While Robinson, the contractor in the Fowler case, was an individual, and' his successor and assignee, the Athens City WaterWorks Company, does not appear to have been incorporated, and the contractor in the ease now in hand was a corporation, this difference certainly would not alter the principle to be applied in the present case; nor would such principle be affected by the fact that in the case before us the contract between the City of Macon and the waterworks company was expressly authorized by the act of 1891, amending the charter of the City of Macon, whilst in the Fowler case it does not appear that express legislative authority was given to the City of Athens to enter into the contract therein involved. Such city did not need express authority to make the contract; for it is well settled that under the “general welfare clause,” usually found in the charters of towns and cities, such municipalities have the authority to enter into contracts and to exercise the power of taxation, within the limits fixed by the constitution, for the purpose of providing their inhabitants with water for domestic use, as well as to provide the city with water to protect its inhabitants from loss by fire. City Council of Dawson v. Dawson Waterworks Co., 106 Ga. 696 (32 S. E. 907), and cit. The “general welfare clause” was contained in the charter of the City of Athens. The same right to use the streets of the city for the purpose of laying water-mains, etc., was given to Eobinson, under the contract he made with the City of Athens, as was given to the waterworks company in the case in hand, under the contract it entered into with the City of Macon, and the obligations to be performed by the contractors in each of the cases were of the same character. To our mind, therefore, the Fowler case is, as we have already said, absolutely controlling in the present case, and requires that the question certified to this court by the Court of Appeals shall be answered in the negative, that is, that Holloway’s petition set out no cause of action against the Macon Gas Light and Water Company. Here, as there, was a “violation of a contract entered into with the public, the breach being by mere omission or nonfeasance,” which “is no tort, direct or indirect, to the private property of an individual, though he be a member of the community and a taxpayer to the government.”

The plaintiff in error relies upon Freeman v. Macon Gas Light & Water Co., 126 Ga. 843 (56 S. E. 61, 7 L. R. A. (N. S.) 917). It was there held: “When a private corporation, in the exercise of a franchise granted by a municipality, pursuant to a statute which confers upon it the right to use the streets of the city on condition that it will therein lay its mains and furnish the municipality and its inhabitants with a supply of water at fixed tolls, engages in the business of supplying the general, public with water, it becomes liable as a public-service corporation for its wrongful act in cutting off the supply of water which it is under the duty to furnish one of its patrons as a member of the public at large.” This ruling, when applied to the facts of that case, is not contrary to what was held in the Fowler case. Indeed Mr. Justice Evans, who delivered the opinion, expressly states therein: “What we have said in no way conflicts with the principle decided in Fowler v. Athens City Water-Works Co., 83 Ga. 219. There the water company was sought to be held liable to a private citizen because of a failure to perform a duty owing to the municipality, under a contract with it to furnish it an adequate supply of water for Are protection. The city, in the exercise of its governmental functions, undertook to afford its citizens adequate fire protection — not by itself laying mains and maintaining a water supply plant, but by hiring one Eobinson to do so.” The ruling in the Freeman case was to the effect that when the water company, under the franchise which it had accepted and the contract which it had made with the municipality, engaged in. the business of supplying the public at large with water for certain purposes, it became a public-service corporation, and, as such, was under a public duty to Freeman, one of its customers and a member of the public at large served by such company, to furnish him, as a private consumer, a sufficient supply of water in accordance with the contract, and that the breach, of such duty, by wrongfully cutting off his supply of water, was a tort for the commission of which it was liable to him in damages. It will be readily seen that the facts in the Fowler case and those in the ease with which we are now dealing are quite different from the facts in the Freeman case, and involve the application of different principles of law. In the Freeman case the duty which the water company assumed, by accepting its franchise, entering Into the contract with the municipality, and engaging, as a public-service corporation, in the business of supplying the inhabitants of Macon with water for domestic purposes, was a public one which it owed to Freeman as a member of the public at large. As a public-service corporation, operating under a franchise which gave to it the right to occupy and use the streets, etc., for the purpose of laying therein its mains, etc., and carrying on its business, and engaging in the business of supplying the public at large with water at fixed tolls, it owed certain public duties to Freeman and every other member of the community standing in the same relations to it, the breach of which constituted a tort. While the contract between the city and the water company in the present ease is the same as the one involved in that case, the breach of duty relied on here is not the same as the breach of duty relied on there. The water company, as a public-' service corporation, did not, under its contract with the City of Macon, nor, so far as appears in this ease, in the conduct of its business, undertake to supply the public at large with water from the city hydrants for the purpose of extinguishing fires, nor did 16 undertake to so supply ITolloway, the plaintiff in error, with water for fire protection. As to a supply of water from the city hydrants for fire protection, all that the water company undertook to do was to furnish such water to the city in.its corporate capacity; and whatever breach of duty it may have committed by its failure so to do upon the occasion of the fire in question was a breach of the duty which it owed to the city, and not a breach of any public duty which it owed to Holloway and other members of the public at large of the City of Macon.