Earl E. Roher Transfer & Storage Co. v. Hutchinson Water Co.

• Decision Date: 08 March 1958
• Docket Number: 40803,Nos. 40802,s. 40802
• Citation: 182 Kan. 546,322 P.2d 810
• Parties: EARL E. ROHER TRANSFER & STORAGE COMPANY, Inc., a Corporation, Appellant, v. HUTCHINSON WATER COMPANY, Inc., a Corporation, Appellee. Earl E. ROHER, Appellant, v. HUTCHINSON WATER COMPANY, Inc., a Corporation, Appellee.
• Court: Kansas Supreme Court

Page 810

322 P.2d 810

182 Kan. 546

EARL E. ROHER TRANSFER & STORAGE COMPANY, Inc., a Corporation, Appellant, v. HUTCHINSON WATER COMPANY, Inc., a Corporation, Appellee.

Earl E. ROHER, Appellant, v. HUTCHINSON WATER COMPANY, Inc., a Corporation, Appellee.

Nos. 40802, 40803.

Supreme Court of Kansas.

March 8, 1958.

Syllabus by the Court

Under the terms of a contract between a city and a water company whereby the latter agreed to furnish water to the former for use in extinguishing fires, as is more fully explained in the opinion, the contract is examined, and it is held, it did not constitute a third party beneficiary contract and since there was no privity of contract between the citizens or residents of the city and the water company, a citizen who suffered a fire loss because of failure of the water company to furnish the water pressure required under the terms of the contract, had no authority to maintain an action against the water company for such loss and the trial court correctly sustained the demurrer.

Ralph J. Thorne, Hutchinson, argued the cause, and Charles E. Rauh and John A. Robinson, Hutchinson, were with him on the briefs for appellants.

J. Richards Hunter, Hutchinson, argued the cause, and Walter F. Jones, Harry H. Dunn, and William B. Swearer, Hutchinson, were with him on the briefs for appellee.

ROBB, Justice.

These actions were commenced separately and in each case an appeal was taken from an order of the trial court sustaining a demurrer of appellee filed against the petition of appellant. This court ordered consolidation of the appeals for consideration here.

The parties will hereafter be referred to as plaintiff and defendant, and we will refer to the petitions in the singular since they are identical with the exception of the name and capacity of the parties plaintiff and the element of damages.

The pertinent portions of the petition may be summarized as follows:

On September 12, 1950, the qualified voters of the city of Hutchinson approved ordinance No. 3361 granting a franchise to defendant to operate a water plant for the city and to furnish water thereto; plaintiff was a citizen and taxpayer of the city and was thereby entitled to the rights and benefits enumerated under the contract between the city and the defendant; section 5 of the ordinance above referred to provides that 'The grantee * * * shall maintain its water supply and system * * * so that there shall be available for fighting fires the number of hose streams (with pressure of not to exceed 115 pounds at the pump discharge at its central pumping plant) as determined by the following formula:

'The number of fire streams shall be 2.8 times the square root of the population of the City in thousands. Fire streams in the business district shall be construed to mean the discharge of 240 to 250 gallons per minute * * *. Of the total number of fire streams as figured by the above formula not less than two-thirds of the number shall be considered as available to play on a single block in the mercantile district. * * *

'Fire pressures within the area covered by the gridironed portion [network of pipes] of the water distribution system will be ninety pounds per square inch for the mercantile districts * * * as measured at the fire hydrants when the required number of fire streams are in play.'

The petition further alleged:

Plaintiff's property was located in the mercantile district and defendant was obligated to furnish plaintiff with ninety pounds of water pressure; on July 18, 1954, through no fault of plaintiff, fire broke out on plaintiff's property; the city fire department arrived in due time but was hindered in its attempts to extinguish the fire because of the failure to have sufficient water supply and pressure; at the time of the fire, ninety pounds of water pressure per square inch was not provided but only sixty to seventy pounds of pressure was available when the fire department began fighting the fire, and after a few minutes the pressure dropped to forty pounds where it remained until the fire was finally extinguished; because of defendant's failure, the fire department could not utilize its equipment to its practical advantage; plaintiff thereby sustained damage far in excess of any amount he would have sustained had the pressure been what defendant was obligated to furnish under the contract; defendant had knowledge of the inadequate water supply and pressure to the fire hydrants; it had been constantly brought to defendant's attention, and defendant had negligently failed to remedy the situation. Defendant's negligence in failing to maintain the water supply and pressure was the proximate cause of plaintiff's damage. The remainder of the petition had to do with damages.

The ordinance under consideration was made a part of the petition by stipulation. The salient parts thereof read:

'Section 1. That in consideration of the benefits to the City of Hutchinson, Kansas, and its inhabitants * * * there is hereby granted to the Hutchinson Water Company, Inc., * * * the right * * * to supply the City of Hutchinson, Kansas, and the inhabitants thereof with water for all purposes for which water may be used * * * and * * * for all purposes for which water is furnished, distributed, sold, and used, all upon the terms and conditions hereinafter set forth.

'Section 3. That the City does hereby agree to pay for the use of fire hydrants and for water required for municipal fire protection * * *. That all public fire hydrants shall be used exclusively for the extinguishment of fires, necessary drill and practice of the Fire...