Krom v. Antigo Gas Co.

140 N.W. 41, 154 Wis. 528, 1913 Wisc. LEXIS 260

• Court: Wisconsin Supreme Court
• Decided: October 7, 1913
• Status: Published

Opinions

Tbe following opinion was filed February 18, 1913:

WiNSLow, O. J.

It is very certain that the complaint states a good common-law cause of action for negligence against the gas company, and the only question which we find it necessary to consider upon this appeal is the question whether a cause of action is stated against the water company.

In the case of Britton v. Green Bay & Ft. H. W. W. Co. 81 Wis. 48, 51 N. W. 84, this court held, after full argument and mature consideration, that at common law there was no liability on the part of a water company in such a case. It was recognized in that case that the question was one upon which there was not entire unanimity of opinion in the courts, but it was deemed that the doctrine of nonliability to the individual property owner in such a case was supported by the greater weight of authority and was the more reasonable and logical. We recognize the fact that since that decision two state courts have met this question and have come to the opposite conclusion: Gorrell v. Greensboro W. S. Co. 124 N. C. 328, 32 S. E. 720; Mugge v. Tampa W. W. Co. 52 Fla. 371, 42 South. 81. See generally on this question, note to State v. Gosnell (116 Wis. 606, 93 N. W. 542) 61 L. R. A. 33, on pages 96, 97, and 98; also German Alliance Ins. Co. v. Home 17. S. Co. 226 U. S. 220, 33 Sup. Ct. 32. Whatever might be our conclusion on the question were it presented now for the first time in this court, we do not think that we would be justified in changing the rule of liability laid down in the Britton Case. That rule was announced more than twenty years ago. Many water companies in this state have organized and erected plants at large cost and gone into business since that time. They were entitled to regard that very important question as settled by the decision in. the Britton Case, and doubtless did so regard it. Their investments may truly be said to have been made in reliance upon that decision. In every practical sense it has become a rule of property which if disturbed at - all should be disturbed only by.legislative action.

The appellants claim in this .case_that it has been so changed, and this claim presents the most serious question which we meet in the case. Two sections of the Public Utilities Law are relied on as accomplishing this result, namely, éec. 1197m — 3 and sec. 1797m — -93, Stats.

The first named of these sections provides that “Every public utility is required to furnish reasonably adequate service and facilities,” and the second provid.es that “If any public utility shall do or cause to be doné or permit to be done any matter, act, or thing in sections 1797m — -1 to 1797m — 109, inclusive, prohibited or declared to be unlawful, or shall omit to do any act, matter or thing required to be done by it, such public utility shall be liable to the person, firm or corporation injured thereby in treble the amount of damages sustained in consequence of such violation; provided, that any recovery as in this section provided, shall in no manner aflect a recovery by the state of the penalty prescribed for such violation.”

The first section named is plainly declaratory of the common law and adds nothing to the obligations of persons or corporations who, having received legislative authority to carry on the business of a public utility, undertake to do so.

Such persons and corporations have always been under a legal duty to furnish reasonably adequate service at reasonable rates and without discrimination to all who are entitled to apply for service. Shepard v. Milwaukee G. L. Co. 6 Wis. 539; Munn v. Illinois, 94 U. S. 113; Kennebec W. Dist. v. Waterville, 97 Me. 185, 54 Atl. 6, 60 L. R. A. 856; Madison v. Madison G. & E. Co. 129 Wis. 249 (108 N. W. 65), and cases cited in that ease on page 265.

The effect of the second section cited presents, however, a more difficult question. The legislature, having by the first named section incorporated in the law a specific requirement that reasonably adequate service shall be furnished, now provides, by the second named section, that if any public utility “. . . shall omit to do any act, matter or thing required to be done by it, such public utility shall be liable to the person, firm or corporation injured thereby” in treble damages, in addition to any penalty owing to the state.

The question whether the legislature intended by these words to substantially add to or enlarge the limits of liability laid down in the Britton Gase must, we think, be answered in the affirmative. That case in substance held that there could be no recovery by the individual whose property had been destroyed on account of the negligent failure of a water company to furnish a sufficient supply of water, because there was no contract relation between the individual and the utility, and hence no duty owing and no breach of duty. The section under consideration makes no mention of contract rights, and with apparent industry bases a liability on two facts only: (1) omission to perform a duty imposed by the act (no distinction being in terms made as to the party to whom the duty is primarily owing), and (2) injury thereby to some person, firm, or corporation. The use of the word “injured” in this connection has some degree of significance. Had the word “damaged” been used, the argument that there was no intention to extend the former rule would be stronger, for damage technically means loss resulting from an actionable wrong, whereas injury carries no necessary implication of such a wrong. The use of the word “injured,” therefore, seems to indicate an intentional departure from the idea of legal damage as an essential to a recovery and the substitution therefor of actual injury resulting from any neglect of duty by the utility, whether the duty neglected was one owing to the plaintiff or to the municipality at large. '

Our conclusion upon this preliminary question brings us to the last question which we find it necessary to consider in the case, namely, the question whether by the last named section all acts and omissions in violation of the utilities law, however trivial and unintentional, are to be punished by the imposition of treble damages, in addition to a criminal penalty, or whether only wilful acts and omissions are so to be punished. The law nowhere contains- the word “wilful,” and it is strongly urged that if we construe it to cover only wilful acts, and act's which by reason of their wanton or reckless character are legally equivalent to wilful acts, we shall be construing words which are so plain as to prohibit construction, and thus in effect encroach on legislative powers. This argument would possess much strength were it not for the fact that this court, in a series of decisions commencing many years ago, has construed similar statutes highly drastic and penal in their nature as not covering acts or omissions resulting from mere inadvertence or excusable neglect. Thus in Cohn v. Neeves, 40 Wis. 393, a statute providing for the recovery of treble damages against any person who should* convert to his own use without consent of the owner any logs, timber, etc., floating in any of the waters of the state or lying on the banks, was held, in view of its highly penal character, as only intended to apply “to a conversion where there was some element of wilfulness, wantonness, or evil design in the act.” It was also said in that case that the law “by way of punishment subjects the wrongdoer in certain cases to an extraordinary liability for the property of another appropriated to his use. In some cases the conversion may be merely a technical one in law, arising from accident, mistake, or even carelessness, without any evil design, and where the damages recoverable at common law afford .an adequate compensation to the party injured. We can hardly think such a case was within the contemplation of the legislature.” In that case reliance was placed on the case of Wallace v. Finch, 24 Mich. 255, where a similar statute had been similarly construed.

Again in Schumacher v. Falter, 113 Wis. 563, 89 N. W. , and Johnson v. Huber, 117 Wis. 58, 93 N. W. 826, statutes providing penalties for refusal to discharge mortgages and judgments were respectively held to apply only to wilful refusals, although neither the word “wilful” nor any equivalent word was used in the act itself. So also in the case of State v. Railway Cos. 128 Wis. 449, 108 N. W. 594, a section of the law which provided that any railroad company which should neglect to pay its license fee “or any part thereof” should absolutely forfeit to the state the sum of $10,000, and also stand liable to forfeit all of its rights under the laws, was held not to cover an excusable or honest mistake in making returns either of law or fact or both, but only to an inexcusable failure.

The statute before us is highly penal in its nature. We think the legislature could hardly fail to realize its almost criminal character. The Public Utilities Law was not the product of a single brain, nor was it struck off at a moment’s notice, but bears marks of careful thought, examination, and deliberation by many minds. It can hardly be supposed that its framers did not know of the principle acted upon by this court for nearly or quite thirty years in the construction of such highly penal laws, and it must be presumed, we think, that they enacted the present section with that established principle of construction in mind, and hence considered it unnecessary to further signify their purpose to provide thereby a punishment for acts and omissions in which there was some element of wilfulness, wantonness, or reckless disregard of duty. For such acts or omissions it's provisions are eminently suitable; for errors of honest judgment or unintentional and excusable neglects they are not only not suitable but unnecessary in the many cases where there is a common-law liability to patrons for negligent failure to render adequate service, causing legal damage to the patron.

The legislature must have known also that some cities of the state already owned their own water plants, and that the number of such cities was on the increase, and they could ■hardly fail to have in mind the fact that any single conflagration in even the smallest of our cities might easily cause a loss which when multiplied by three would impose a staggering debt upon the municipality, from the burden of which it could not escape for many years. If the plaintiffs’ contention is sustained, it must be on the theory that it was intended to place that crushing burden not only on the water companies of the state, but also on the municipal corporations which own and operate their own waterworks, in every case where by the carelessness or inadvertence of an employee the water pressure falls short for a brief time at the incipient stages of a destructive fire, or some other temporary default occurs on the part of a subordinate employee from which a jury might find a failure to furnish reasonably adequate service in the early moments of the fire.

Viewing the statute in the light of the decisions, we do not feel that we can do otherwise than construe it as a statute covering only wilful breaches of duty, or, as expressed in the (John Case (40 Wis. 393), a breach in which there is “some element of wilfulness, wantonness, or evil design.”

As we view the complaint there is no such breach charged against the water company here, and hence no cause of action is stated against the water company, and there is no improper joinder of causes of action.

By the Court. — -The order sustaining the demurrer of the defendant gas company is reversed with costs, and the order sustaining the demurrer of the-defendant water company is affirmed with costs, and the action is remanded for further proceedings according to law.