Anderson v. Waterworks

• Decision Date: 19 December 1923
• Docket Number: No. 6.,6.
• Parties: ANDERSON v. IRON MOUNTAIN WATERWORKS.
• Court: Michigan Supreme Court

225 Mich. 574

196 N.W. 357

ANDERSON

v.IRON MOUNTAIN WATERWORKS.

No. 6.

Supreme Court of Michigan.

Dec. 19, 1923.

Error to Circuit Court, Dickinson County; Richard C. Flannigan, Judge.

Action by Ellen Anderson against the Iron Mountain Waterworks. Judgment for defendant notwithstanding the verdict, and plaintiff brings error. Affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.Berg, Clancey & Randall, of Ishpeming, for appellant.

Symonds & Rahm, of Iron Mountain, for appellee.

WIEST, C. J.

Ellen Anderson owned a building in the business district of the city of Iron Mountain. The night of February 25, 1922, fire broke out in the building and entirely destroyed it.

Claiming that the fire department of the city, upon arriving at the fire, found one water hydrant frozen and another covered with snow and that the consequent delay, and having to go to a more distant hydrant, was the proximate cause of the destruction of the building, she brought this suit against defendant water company to recover damages.

The declaration counted on a contract between the city and defendant, under which the city rented fire hydrants, to be kept in efficient order and supplied with water pressure for service in case of fire by defendant, alleged breach thereof with consequent damage to plaintiff, and right of action as a beneficiary of such contract. There was also a count sounding in tort.

At the trial plaintiff had verdict, but the court, notwithstanding the verdict, entered judgment for defendant.

The case is here by writ of error and presents the question of defendant's liability.

The learned circuit judge was clearly right, under the great weight of authority, in entering judgment for defendant.

The question, while of first impression in this state, has been so often decided adversely to plaintiff in the federal courts, in other states, and in England and Canada, as to render an extended opinion on the subject supererogatory.

Had the city owned and operated the water system, plaintiff could have brought no suit against it for failure to keep the hydrants serviceable.

At common law no such liability, as claimed here, has been imposed on a water company. Trustees, etc., v. New Albany Waterworks (Ind.) 140 N. E. 540. Nor has such liability been recognized in cases where the civil law has been invoked. Allen & Currey Mfg. Co. v. Shreveport Waterworks, 113 La. 1091, 37 South. 980,68 L. R. A. 650, 104 Am. St. Rep. 525,2 Ann. Cas. 471; Belanger v. Montreal Water & Power Co., 50 Supreme Court of Canada, 356. To constitute all the property owners of the city beneficiaries of the contract by implication of law, with right of action individually, is not permissible.

In three states liability of a water company has been judicially declared, Morton v. Washington Light & Water Co., 168 N. C. 582, 84 S. E. 1019;Gorrell v. Water Supply Co., 124 N. C. 328, 32 S. E. 720,46 L. R. A. 513, 70 Am. St. Rep. 598;Woodbury v. Tampa Waterworks Co., 57 Fla. 249, 49 South. 556,21 L. R. A. (N. S.) 1034;Kenton Water Co. v. Glenn, 141 Ky. 529, 133 S. W. 573. Other cases from these states might be cited to the same effect. Some of the cases holding there is liability seem to proceed on the theory that, by implication of law, negligence in performance of a public service affords a right of action, regardless of contract. Others appear to plant liability upon a contract to perform a public service, inuring to the benefit of citizens, where liability for negligent performance is not expressly negatived in the contract.

In speaking of the decisions based upon the supposed agency of the municipality and holding the contract entered into for the benefit of the inhabitants individually, the Supreme Court of Louisiana, in Allen & Currey Mfg. Co. v. Shreveport Waterworks Co., supra, well said:

‘In general terms, it may be said of them that they obliterate the line of demarcation between the corporators and corporation, identify the individual with the public, consecrate the anomaly of a commutative contract emancipated from mutuality of obligation, and finally impose by implication a liability which, if intended by the parties to be a part of their contract, would most indubitably have been made the subject of an express clause.’

The authorities adverse to plaintiff's right to recover consider at length every possible phase of the question, and we quote from but one. In German Alliance Insurance Co. v. Homewater Supply Co., 226 U. S. 220, 33 Sup. Ct. 32, 57 L. Ed. 195,42 L. R. A. (N. S.) 1000, it was said:

‘The courts have almost uniformly held that municipalities are not bound to furnish water for fire protection. * * *

‘If the common law did not impose such duty upon a public corporation, neither did it require private companies to furnish fire protection to property reached by their pipes. And there could, of course, be no liability for the breach of a common law, statutory or charter duty which did not exist. It is argued, however, that even if, in the first instance, the law did not oblige the company to furnish property owners with water, such a duty arose out of the public service upon which the defendant entered. But if, where it did not otherwise exist, a public duty could arise out of a private bargain, liability would be based on the failure to do or to furnish what was reasonably necessary to discharge the duty imposed.’

After calling attention to 3 Dillon, Municipal Corporations, § 1340, and Ancrum v. Water Co., 82 S. C. 284, 64 S. E. 151,21 L. R. A. (N. S.) 1029, where decisions on the subject are collated, the court said:

‘From them it appears that the majority of American courts hold that the taxpayer has no direct interest in such agreements and, therefore, cannot sue ex contractu. Neither can he sue in tort, because, in the absence of a contract obligation to him, the water company owes him no duty for the breach of which he can maintain an action ex delicto. * * *

‘Here the city was under no obligation to furnish the manufacturing...