Veach v. City of Phoenix, 7965

• Decision Date: 04 May 1967
• Docket Number: No. 7965,7965
• Citation: 427 P.2d 335,102 Ariz. 195
• Parties: Russell W. VEACH and Thelma L. Veach, husband and wife, d.b.a. Ozark Market, Appellants, v. CITY OF PHOENIX, a municipal corporation, G. H. Towne and Jane Doe Towne, husband and wife, G. H. Towne, d.b.a. Towne Electric Company, John Doe and Jane Doe, and Arizona Public Service Company, an Arizona corporation, Appellees.
• Court: Arizona Supreme Court

Page 335

427 P.2d 335

102 Ariz. 195

Russell W. VEACH and Thelma L. Veach, husband and wife, d.b.a. Ozark Market, Appellants, v. CITY OF PHOENIX, a municipal corporation, G. H. Towne and Jane Doe Towne, husband and wife, G. H. Towne, d.b.a. Towne Electric Company, John Doe and Jane Doe, and Arizona Public Service Company, an Arizona corporation, Appellees.

No. 7965.

Supreme Court of Arizona, In Banc.

May 4, 1967.

Corbin & Cunningham, by Robert K. Corbin, Phoenix, for appellants.

Merle L. Hanson, City Atty., City of Phoenix, by Robert J. Backstein and James D. Lester, Phoenix, for appellees.

UDALL, Justice:

Plaintiffs seek recovery from the City of Phoenix and others (hereinafter referred to as defendants) for the sum of $66,826.56 as damages to plaintiff's property caused by fire. Defendants filed a motion to dismiss plaintiff's second amended complaint for failure to state a claim, which was granted and judgment was entered from which plaintiffs appeal.

In essence, the amended complaint alleged that on January 23, 1962, a fire broke out in plaintiffs' market and completely destroyed it. That part of the City of Phoenix's function as a municipal corporation is the 'furnishing, supplying and distributing of water for the benefit of the (city's) inhabitants' but that defendant city 'failed to distribute, supply and provide water for fighting fires at or near the location of said market;' and 'That on said date when said fire broke out, there was no available supply of water with which to fight said fire, thereby causing and resulting in injury and damage to Plaintiffs.' It was also alleged that previous to January 23, 1962, plaintiffs had requested of defendant that it 'provide, install, maintain and supply a fire hydrant for the distribution and supplying of water at or near said location for fire protection purposes, but said Defendant negligently failed to do so.'

The trial court, in ordering the dismissal of plaintiffs' complaint, found that defendant city was operating in a governmental capacity in furnishing water for the fighting of fires and that there was no duty on the part of defendant to supply water for fire protection. Plaintiffs contend the lower court erred in so holding.

There is no doubt that the trial judge ruled in accord with the general rule in the United States. 63 C.J.S. Municipal Corporations § 776(b); 38 Am.Jur. Municipal Corporations § 626; 18 McQuillin, Municipal Corporations, 3rd Ed., §§ 53.52, 53.53. However, the majority of cases from the various jurisdictions which hold that a city has no duty to provide such service base their holding upon the conclusion that the maintenance and operation of a municipal fire department is a governmental function and in the exercise of such function, the municipality is immune to liability. In recent years, though, there has been a growing dissatisfaction with the decisions upholding municipal immunity from tort liability. The dissatisfaction of this Court with the rule of governmental immunity and the distinction between governmental and proprietary functions culminated in the landmark case of Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107. We held therein that the doctrine of governmental immunity from tort liability was abolished and that the distinction between proprietary and governmental functions is no longer valid as a method of allocating municipal liability in this state.

This being so, whether defendant city is acting in a governmental capacity in providing water to extinguish fires is of no consequence in the disposition of this appeal. The sole question for decision is whether defendant has a legal duty to furnish water for fire protection purposes to the city's inhabitants.

The record shows that defendant owns the municipal water distribution system in the City of Phoenix; we have held that in operating a water system, a city is a public service corporation. Town of Wickenburg v. Town of Sabin, 68 Ariz. 75, 200 P.2d 342. It also appears to be the rule that a public service corporation is under a legal obligation to render adequate service impartially and without discrimination to all members of the general public to whom...