Woodbury v. Tampa Waterworks Co.

• Decision Date: 06 February 1909
• Citation: 49 So. 556,57 Fla. 249
• Parties: WOODBURY v. TAMPA WATERWORKS CO.
• Court: Florida Supreme Court

49 So. 556

57 Fla. 249

WOODBURY v. TAMPA WATERWORKS CO.

Florida Supreme Court

February 6, 1909

On Rehearing, May 18, 1909.

In Banc. Error to Circuit Court, Hillsborough County; Joseph B Wall, Judge.

Action by A. C. Woodbury against the Tampa Waterworks Company. From a judgment sustaining a demurrer to the complaint, plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Where a water company undertakes to render the public service of furnishing water for fire protection in a city, an individual may maintain an action against the company to recover damages for a loss proximately resulting to him from the negligent failure of the company to perform its duty to the plaintiff as a part of the public service undertaken, if the loss is such as the company should reasonably have contemplated as the ordinary, natural, and probable result of the negligence.

Negligence is a 'proximate cause' of an injury or loss, when in ordinary, natural sequence it causes or contributes to causing the injury or loss, without an intervening independent efficient cause.

The duty a water company owes by implication of law to an individual property owner by virtue of engaging in the public service of furnishing water for fire protection is to supply the hydrants near the property of the individual with water as legally required. The law imposes no duty to insure property or to extinguish fires.

Where a water company is engaged in rendering the public service of furnishing water for fire protection in a city, and an action for negligence is brought against the company by an individual, an allegation that the negligence consisted in the failure of the company to supply the hydrants in the immediate section where the fire existed with water for fire purposes, and by reason thereof the fire was not extinguished, and then and there spread to and burned the plaintiff's property, does not show that the negligence complained of was a proximate cause of the plaintiff's loss, where it appears that the plaintiff's property was not located where the fire originated and 'existed,' and it does not apppear that the defendant was responsible for starting the fire, or was under a duty to extinguish the fire and failed to do so. The negligence of the defendant in failing to furnish water where the fire originated may not be the proximate cause of the burning of property at another place, and the duty of the defendant to the plaintiff is to furnish water at the point where the plaintiff's property is located, not where property of others is burning.

In an action to recover damages an allegation that the defendant's negligence was the proximate cause of the injury to the plaintiff is insufficient, when not sustained by the facts alleged.

On Rehearing.

The purpose of the statutory provision that 'any civil action at law may be maintained in the name of the real party in interest' is to relax the strict rules of the common law so as to enable those directly interested in, but not parties to, a contract, to maintain an action for its breach; and the statute should be so applied as to accomplish its salutary purpose.

Where the clear intent and purpose of a contract is a direct and substantial benefit to third parties severally, and such parties are the real parties in interest, they may severally maintain actions for breaches of the contract that specially injure them. A party who is injured is the 'real party in interest' in an action to recover damages for the injury.

Where a corporation is by its charter authorized to engage in the business of supplying a city and its inhabitants with water for fire protection and other useful purposes, and a contract between such corporation and a city, made for the supply of water, is intended to be for the direct, immediate, and substantial benefit of the city and of its individual property holders and inhabitants, the compensation for the water supply being furnished by individual property holders through a special property tax levy, and the corporation actually engages in the service, the individual property holders of the city have a right to rely upon the performance of the contract, and a right of action for a breach of the contract that results in special injury to them.

A duty and liability for negligence of omission or commission in performing the duty may be founded in the law, where a public service is undertaken whether a contract exists as to the service or not. The omission to perform a mere contract duty may not be a tort; but if a legal duty is imposed independent of or concurrently with the contract, a breach of the legal duty may be a tort.

As a general rule an action for injuries for negligence may be maintained only by those between whom and the negligent party there existed at the time of the negligent act some relation or privity out of which a contract or legal duty, express or implied, arose in favor of the injured party.

The relationship of agency is not necessary in order to confer on an individual owning property in a city legal rights growing out of a contract between the city and a water company whereby the latter is to furnish water for fire protection in the city.

A water company, which by contract with a city is required to furnish water for fire protection, is not a governmental agent or officer.

Furnishing water for the use of inhabitants of a city is not a governmental function that cannot be delegated.

Where a public service is undertaken by a corporation exercising public franchises, and duties to individuals are imposed upon the corporation by law, such individuals may maintain actions for special injuries to them resulting proximately from the negligence of the corporation in failing to perform the duties, where under the circumstances the injury should reasonably have been contemplated, and the plaintiffs are not in fault.

When a corporation exercises public franchises and engages in rendering a public service, the duties of the corporation to the public collectively and individually need not be expressed in the charter or in statutes. The duties may arise by implication of law from the relation voluntarily assumed by the corporation towards the members of the public in using the franchises and in undertaking to render public service.

The duties of a public service corporation, whether express or implied by law, may be enforced by mandamus.

By implication of law there is imposed upon all corporations engaged in performing a service of a public nature the duty to render for a reasonable compensation and without unjust discrimination a service reasonably adequate to meet the just requirements of those directly affected by the service.

Where a water company undertakes to render the public service, by furnishing water for fire protection in a city, the fact that the property owners pay for the fire protection through a special tax levied for that purpose, and consumers of water pay directly for water consumed, does not affect the public nature of the duty of the water company, so as to relieve it from liability to a property owner injured as the proximate result of its failure to furnish an adequate supply of water as lawfully required to do.

No privity of contract is necessary to support an action in tort for an invasion of a legal right or the infraction of a duty implied by law, where special injury to an individual results.

Where a case is new in instance, but not in principle, it is the duty of the court to apply remedies applicable to cases coming within existing principles, even though the principle has not before been applied.

Where defendant water company contracted with a city to furnish water for fire protection, if because of defendant's negligent failure to furnish water where the fire started and because of usual natural conditions, that were ordinarily likely to exist under the circumstances, and should reasonably have been contemplated as probable to occur, the fire, as a proximate result of the defendant's negligence, spread to and consumed plaintiff's property defendant may be liable if it did not so discharge its immediate duty to plaintiff by furnishing water at or near plaintiff's house, that the water could reasonably, under the circumstances as they then existed, have been successfully used in extinguishing the fire when it reached plaintiff's property. If defendant was not negligent in failing to furnish water for the immediate protection of plaintiff's property, but as a proximate result of defendant's negligence in not furnishing water as legally required where the fire started, or at points covered by the conflagration before it reached plaintiff's property, the fire spead to and consumed such property, because it could not reasonably have been extinguished at plaintiff's house by the use of the water furnished there, defendant may be liable.

Where negligence is the basis of an action, the declaration should contain allegations of the negligent act or omission complained of, and also allegations of the injuries sustained and of facts showing that such injury was the proximate result of the negligence alleged.

The rule in actions ex delicto is that the injury must be such as the parties should reasonably have contemplated as the ordinary, natural, and probable result of the negligence alleged. If the injury is a natural, probable, and ordinary result of the negligence alleged, it will be held to have been contemplated by the parties. The particular consequences of the injury need not have been in fact contemplated. If the injury should have been contemplated, there is liability for all the consequences of the injury that flow in uninterrupted sequence from the original negligent default, whether such particular...