Josey v. Beaumont Waterworks Co.

183 S.W. 26, 1916 Tex. App. LEXIS 109

• Court: Court of Appeals of Texas
• Decided: January 14, 1916
• Docket: No. 36. [fn*]
• Status: Published

Opinion

BROOKE, J.

(after stating the facts as above). The pipe line was erected by the plaintiffs. It was a private line owned by them, and, so far as the record shows, it was broken through no fault of the defendant. Therefore the question arises whose duty it was to keep the said pipe line in repair. If it was the duty of the appellee to keep the line in repair and by its negligence in the premises the said line became broken, it would be liable. It is not alleged, neither was it proven, that there was any verbal or written contract by which the appellee agreed, or that any duty rested upon it, to keep the said line in repair, and plaintiffs in this case are not contending that they have any right of action by virtue of any duty owing them as members of the public, arising from the franchise held by the defendant from the city of Beaumont.

[1] The fact that the Waterworks Company have had a franchise in the city of Beaumont permitting it to lay a main in its street and furnish water to its citizens would not, from that alone, give a right of action in favor of a citizen, on account of the failure to furnish water. As it was held in the case of House v. Houston Waterworks, 88 Tex. 233, 31 S. W. 179, 28 L. R. A. 532, a water taker has no such right.

In their petition the appellants allege that the company agreed and contracted to furnish the water, but they do not allege that it agreed either to keep their private line in repair, or agreed in said contract to notify them in case it should become defective. In the case of Fisher v. St. Joseph Water Co., 151 Mo. App. 530, 132 S. W. 288, the water taker installed a service, stock box, and other appliances through which water was conducted through the main line of the company to its premises. The stock box was faulty in construction, and some third party received an injury therefrom. The question of who was liable for this injury turned on the point as to whose duty it was to maintain the stock box in proper condition. It' was held that the water taker received his water at the street main, and that all the appliances used in conducting the current to the premises, beginning at the street main, were owned by and were under the supervision of the water taker, and that he, and not the company, be liable for any injuries that were caused by the faulty condition. The case of Windish v. People’s Natural Gas Co., 248 Pa. 236, 93 Atl. 1003, was one wherein negligence was claimed by reason of the fact that the gas company had turned gas through a defective line with knowledge of the fact that it was defective. The question of whether or not it was the duty of the gas company to repair the line came up, and it was said:

“To make the defendant company answerable in damages for failure to repair or inspect the service line from the curb to the property of plaintiff, it was necessary to allege: First, a duty in these respects; and, second, a violation of that duty. The duty to inspect was not charged, and the duty to repair the service line from the curb to house was not sustained by the evidence; ‘but, on the contrary, the contract between the parties placed the duty of repairing this service line upon the owner, or perhaps the occupier of the premises. It certainly cannot be gainsaid that in an action to recover damages on the ground of negligence, the ‘burden is on plaintiffs to show that defendant had a duty to perform in the first instance, and that by reason of failure to perform that duty the injuries resulted.”

In the case of Ellis v. Birmingham Waterworks, 187 Ala. 552, 65 South. 805, suit was brought against a water company by a water taker, alleging injury on account of failure to furnish water. The court said:

“The allegation that the defendant wantonly or intentionally failed to furnish water and water pressure cannot change the result as to stating a cause of action. If there was no legal duty owing by the defendant water company to the plaintiff to furnish water and water pressure, the failure of which is complained of, then a wanton or intentional failure to so furnish will not change the legal rights of the parties.”

Further, the court said:

“The omission to act, however willful, is not an answerable wrong unless there is a legal duty to aet. (Italics ours.) Wantonness, as has been said by this court, is the conscious failure by one charged with a duty to exercise due care in the discharge of that duty.”

[2] There being nothing in the contract in the instant ease, either written or verbal, which would tend to show that the appellee had any duty to perform with reference to the maintenance in good repair of said private pipe line, we are constrained to believe, and to so hold, that the duty of maintaining the same in good repair was upon the appellants. Fisher v. St. Joseph Water Co., 151 Mo. App. 530, 132 S. W. 288; Kosmak v. City of New York, 117 N. Y. 361, 22 N. E. 945; Leonhardt v. City of New York (Sup.) 109 N. Y. Supp. 24; Vinton Roanoke Water Co. v. City of Roanoke, 110 Va. 661, 66 S. E. 835; State v. Gosnell, 116 Wis. 606, 93 N. W. 542, 61 L. R. A. 33; Tobin v. Frankfort Water Co., 158 Ky. 348, 164 S. W. 956; Dublin Electric & Gas Co. v. Thompson, 166 S. W. 113; Windish v. People’s Natural Gas Co., 248 Pa. 236, 93 Atl. 1003.

It is practically without dispute that about two weeks before the fire occurred which destroyed the building and contents, there had been an earlier fire in the hayhouse, which was destroyed, and that said private water line was at that time broken, and that by the burning of the building and hay therein down on the hydrant rising from said private line in the center of the building and extending about as high as a man’s head above the floor, the said fire had broken off a part of the pipe line, and that the hose attached to the line at the time of such earlier fire was used by and under the personal direction of one of the plaintiffs. The facts further show that water flowed from this break in large volumes and was plainly visible; that this’earlier fire occurred in plain daylight; that plaintiffs were both there; and that those directing the fight against the fire knew that the line was burst from seeing it, and observing the effect on the water pressure. The facts further show that plaintiffs had cleared off the premises where the building burned and had taken away the broken hydrant and section of pipe, and partially rebuilt the burned building, and it is contended by the appellee that appellants knew, or that by the use of ordinary care would have known, that their line was broken. The facts further show that on account of said private line being broken at the time of the first fire, the water, under the direction of the fire chief, was cut off from the private line to prevent its free flow from destroying the pressure in the city’s mains, thus lessening their efficiency in putting out fires. The appellants, however, contend that, at the time of the making of the contract, if a contract was made, it was the custom of appellee to notify its patrons of any leak and damage in their lines when the same occurred, and appellants say that, by reason of the fact that appellee failed to give notice to them of the damage to the said private pipe line, the injury occurred, and the damage resulted, as aforesaid; that had the defendant followed the custom and told plaintiffs that the burning of the old hayhouse down on the hydrant had broken off a section of the pipe, or that said pipe was out of repair, then plaintiffs would have fixed the line in time to have prevented the damage of the next fire, and they allege, and there is proof, that they did not know of such damage. It will be noted that in their petition appellants allege that appellee agreed to furnish water, but they do not allege that either appellee agreed to keep their private line in repair or to notify them in case it should become defective. They simply claim that the company owed them a duty to tell them that the line was broken, not based on any private contract obligating the company to give such notice, but the contention is that it was the duty of the water company, aside and apart from any contract that existed between them and the waterworks company, arising from such custom.

It has been said that custom or usage would not make contracts, and that proof thereof can only be resorted to as showing the meaning of words used, and custom will not be allowed to create an obligation, inconsistent with the obligations that follow from an application of the general principles of law. In this case the Waterworks Company was furnishing water from its main line, to be taken through plaintiffs’ private line into their plant. Under the law the duty was upon the plaintiff to care for its private line and keep the same in good repair; there being nothing in the contract, as alleged by the plaintiffs, creating any obligation on the part of the Waterworks Company to do so, unless it arose from this alleged custom to notify owners of damages to their pipes. If it could be shown that the Waterworks Company made a practice of notifying water takers of defective connections, we cannot see how a failure to notify in this particular case would have created an obligation where none otherwise existed. We think the testimony shows that ordinarily the Waterworks Company would call the attention of water takers to faulty or defective connections, but the record shows no case in which the Waterworks Company notified a water taker who owned a private line that the private line was broken. A custom to notify of defects, if it could be read into the alleged contract in this case, would only be a voluntary one on the part of the appellee, and ordinary care would only be required of it in the observance thereof, and it is shown in this case, outside of the fact of the appellants being present at the burning of the hay-house in the first instance, and that they had cleared oft the premises where the said house was burned and taken away the broken hydrant, that the appellee the next day after the hayhouse burned, sent its service man to notify the plaintiffs that the water was shut off, but for some reason this message was not delivered. That the water was shut off on account of the broken pipe cannot be questioned. Mr. Elether, manager of Waterworks, testified:

“I cut the water off because the pipes were broken, and if it had not been bursted I would nót have cut the water off.”

In the case of Barnard v. Kellogg, 77 U. S. (10 Wall.) 383, 19 L. Ed. page 987, it is said:

“It is to be regretted that the decisions of the courts, defining what local usages'may or may not do, have not been, uniform. In some judicial tribunals there has been' a disposition to narrow the limits of this species of evidence, in others to extend them, and on this account mainly the conflict in decision arises. But if it is hard to reconcile all the cases, it may be safely said they do not differ so much in principle, as in the application of the rules of law. The proper office' of a custom or usage in trade is to ascertain and explain the meaning and intention of the parties to a contract, whether written or in parol, which could not be done without the aid of this extrinsic evidence. It does not go beyond this, and is used as a mode of interpretation on the theory that the parties knew of its existence, and contracted with reference to it. It is often employed to explain words or phrases in a contract of doubtful signification, or which may be understood in different senses, according to the subject-matter to which they are applied. But if it be inconsistent with the contract, or expressly or by necessary implication contradicts it, it cannot be received in evidence to affect it. See Notes to Wrigglesworth v. Dallison, 1 Smith’s L. Cas. 670 (Doug. 200); 2 Pars. Cont. § 9, p. 635; Taylor, Ev., p. 943, and following. ‘Usage,’ says Lord Lyndhurst, ‘may be admissible to explain what is doubtful; it is never admissible to contradict what is plain.’ Brackett v. Royal Exch. Ass. Co., 2 Crompt. & J. 249. And it is well settled that usage cannot be allowed to subvert the settled rules of law. See note to Smith’s L. Cases, supra. Whatever tends to unsettle the law and make it different in the different communities into which the state is divided, loads to mischievous consequences, embarrasses trade, and is against public policy. If, therefore, on a given state of facts, the rights and liabilities of the parties to a contract are fixed by the general principles of the common law, they cannot be changed by any local custom of the place where the contract was made. In this case the common law did not, on the admitted facts, imply a warranty of the good quality of the wool, and no custom in the sale of this article can be admitted to imply one. A contrary doctrine says the court, in Thompson v. Ashton, 14 Johns. 317, ‘would be extremely pernicious in its consequences, and render vague and uncertain all the rules of law on the sales of chattels.’ ”

Also the ease of McSherry v. Blanchfield, 68 Kan. 310, 75 Pac. 121, in which the court said:

“But beyond this, usage or custom cannot make a contract when the parties themselves have made none. National Bank v. Burkhardt, 100 U. S. 686, 692, 25 L. Ed. 766; Thompson v. Rigs, 5 Wall. 663, 679, 18 L. Ed. 704; Tilley v. County of Cook, 103 U. S. 155, 26 L. Ed. 374. And the defendant did not claim that technical or trade terms had been used, to which a peculiar meaning, requiring explanation, attached (Seymour v. Armstrong, 62 Kan. 723, 64 Pac. 612; Cosper v. Nesbit, 45 Kan. 457, 25 Pac. 866), or that the contract was ambiguous or indefinite or silent upon any matter (Smythe v. Parsons, 37 Kan. 79, 14 Pac. 444), or that the intention of the parties could not be ascertained from the language they employed. McCulsky v. Klosterman. 20 Or. 108. 25 Pac. 366, 10 L. R. A. 785. This is the only proper function of usage or custom. Barnard v. Kellogg, 10 Wall. 383, 390, 19 L. Ed. 987. Therefore the evidence sought to be introduced was irrelevant and immaterial.”

In support of our views see, also, McGahan v. Indianapolis Natural Gas Co., 140 Ind. 335, 37 N. E. 601, 29 L. R. A. 355, 49 Am. St. Rep. 199; Pike v. Railway Co. (C. C.) 39 Fed. 255; Goodlander Mill Co. v. Standard Oil Co., 63 Fed. 400, 11 C. C. A. 253, 27 L. R. A. 583; Sickles v. Railway Co., 13 Tex. Civ. App. 434, 35 S. W. 493; House v. Houston Waterworks Co., 88 Tex. 233, 31 S. W. 179, 28 L. R. A. 532; Ellis v. Birmingham Waterworks Co., 187 Ala. 552, 65 South. 805; Hone v. Presque Isle Waterworks Co., 104 Me. 217, 71 Atl. 769, 21 L. R. A. (N. S.) 1021; Morton v. Washington L. & W. Co., 168 N. C. 582, 84 S. E. 1019; German Alliance Ins. Co. v. Home Water Co., 226 U. S. 220, 33 Sup. Ct. 32, 57 L. Ed. 195, 42 L. R. A. (N. S.) 1000; Allen & Curry Mfg. Co. v. Shreveport Waterworks Co., 113 La. 1091, 37 South. 980, 68 L. R. A. 650, 104 Am. St. Rep. 525, 2 Ann. Cas. 471.

[3, 4] The failure, therefore, of appellee to furnish water to appellants was brought about and caused by the negligence of appellants to keep their private line in repair. If said private line had been in a good state of repair, the testimony is conclusive that the water supply would not have been cut off. The failure, therefore, of the appellant to provide such pipe line rendered the alleged contract with reference to furnishing water impossible of performance. In this case we hold that there was no legal obligation resting upon the appellee to tell the plaintiffs that their line was open. Therefore the ap-pellees would not be liable for damages that might have been averted had it notified plaintiffs of the broken line, and they had in turn fixed it. We also are unable to see how, even if there had been a duty to notify and a failure to perform it, under the facts of this case it could be said it was the proximate cause of the injury. Mere notice to appellants would not have prevented the fire. The want of water was caused by a broken water line. We fail to understand how the failure to notify of the broken water line was the proximate cause of the injury.

It follows from what has been said, and we hold, that the private line was owned by tile plaintiffs; that it was their duty to keep it in repair; that the damage to said pipe line was not caused by any negligence on the part of the appellee; that the failure to mend the said line caused the appellants’ loss and that the contract entered into, as alleged, by and between appellants and ap-pellee to furnish water through said private line, was rendered incapable of performance by the negligence of appellants in failing to fix and keep in repair the said private line. El Paso & S. W. Ry. Co. v. Eichel, 130 S. W. 922, 940; Gravity Canal Co. v. Sisk, 43 Tex. Civ. App. 194, 95 S. W. 724, 726; McConnell v. Corona Water Co., 149 Cal. 60, 85 Pac. 929, 8 L. R. A. (N. S.) 1171, 1174; 6 Ruling Case Law, 943, § 324; S. Tex. Tel. Co. v. Huntington, 121 S. W. 242, 247, 248; Davis v. Yates, 1 White & W. Civ. Cas. Ct. App. § 265; Wright v. Meyer, 25 S. W. 1123; Loudenback v. Tenn. Phos. Co., 121 Fed. 298, 58 C. C. A. 220, 61 L. R. A. 402, 406; Rice v. Fidelity & Deposit Co., 103 Fed. 427, 433, 43 C. C. A. 270; King Bridge Co. v. City of St. Louis (C. C.) 43 Fed. 768, 10 L. R. A 826, 828; Notes, 30 L. R. A. 39; Hood v. Raines, 19 Tex. 400, 404; Fresno Mill Co. v. Fresno Canal Co., 126 Cal. 640, 59 Pac. 140; 3 Elliott, Contracts, §§ 2044, 2038 ; 6 Euling Case Law, p. 1005, § 369, p. 1012, § 374.

Appellants were not relieved from this responsibility by the fact that in many eases the Waterworks Company notified its patrons of the defects in the line, and it follows that the lower court did not err in instructing the jury to find for appellee. Each and all of the assignments of appellants have been considered, and they are all overruled, the record has been carefully gone over, and we believe that the action of the lower court was justified, and, finding no error therein, the case is in all things affirmed.

It is so ordered.

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