Aronson v. City of Everett

• Decision Date: 16 October 1925
• Docket Number: 19272.
• Parties: ARONSON v. CITY OF EVERETT.
• Court: Washington Supreme Court

239 P. 1011

136 Wash. 312

ARONSON v. CITY OF EVERETT.

No. 19272.

Supreme Court of Washington

October 16, 1925

Department 1.

Appeal from Superior Court, Snohomish County; Bell, Judge.

Action by Victor Aronson, as administrator of the estate of Senobia Aronson, deceased, against the City of Everett. Judgment for plaintiff, and defendant appeals. Affirmed.

Mitchell J., dissenting in part.

O Duncan Anderson and J. W. Dootsen, both of Everett, for appellant.

Sherwood & Mansfield, of Everett, for respondent.

ASKREN J.

This is an appeal from a judgement in the sum of $6,000 entered upon the verdict of a jury in an action for damages for the death of Senobia Aronson, alleged to have died from typhoid fever contracted by drinking contaminated water furnished by the appellant, city of Everett.

Many errors are assigned by appellant. It is first claimed that the complaint did not state a cause of action. The complaint charged that the city of Everett was engaged in the business of supplying water for domestic and drinking purposes to the citizens and inhabitants thereof for a consideration; that during the month of July, 1923, the water so furnished became impure, unwholesome, polluted, and dangerous to the life and health of the citizens; that said condition was known to the defendant, its officers, and agents who were charged with the duty of keeping and maintaining the water in a pure condition, or with the exercise of reasonable care and inspection would have known, but that notwithstanding the condition of the water and the knowledge or means of knowledge thereof, the city of Everett carelessly and negligently furnished such water for a period of six weeks prior to August 14, 1923, and that deceased, Senobia Aronson, did drink and use the water for domestic purposes, and became sick of typhoid fever, which resulted in her death on the 30th day of August, 1923. It seems to be contended by appellant that there should be some allegation as to the specific cause of pollution of the water, or some charge that after the water became polluted the city failed to notify its users to boil the water. As to the last contention it is sufficient to say that if the water became polluted and this fact was known to the city, and the city thereupon notified the users to boil the water, that is a matter that should be set up by way of a defense, for the plaintiff would not be required to negative such matter by his complaint. Nor do we think it necessary that the complaint should specify the cause or place of pollution of the water. Having alleged that the water became polluted and that the officers of the city had notice or in the exercise of reasonable care should have known of it, and such water was furnished to the users, and that one of such users as a result thereof contracted a disease and died, it would seem that a good cause of action for negligence was stated.

Appellant also insists that the complaint was drawn on the theory of an implied warranty, and argues strenuously that the city in furnishing water to its users does not guarantee its purety and wholesomeness. Reliance is had upon Canavan v. Mechanicville, 229 N.Y. 473, 128 N.E. 882, 13 A. L. R. 1123, and Green v. Ashland Water Co., 101 Wis. 258, 77 N.W. 722, 43 L. R. A. 117, 70 Am. St. Rep. 911. While both cases hold that a city furnishing water to its inhabitants does not impliedly warrant that the same is pure and wholesome, yet both of these cases recognize that the failure to properly inspect the water so as to keep it free from contamination is negligence. There is ample authority that a city engaged in furnishing water, electricity, or other kindred services to its inhabitants for a profit is liable for negligence the same as any private corporation engaged in the same business, that the city does not act in a governmental capacity, and that there is an implied warranty that the water is fit for human consumption. Hayes v. Torrington Water Co., 88 Conn. 609, 92 A. 406; Jones v. Mt. Holly Water Co., 87 N. J. Law, 106, 93 A. 860; Hamilton v. Madison Water Co., 116 Me. 157, 100 A. 659, Ann. Cas. 1918D, 853. As to which rule should be adopted it is not necessary for us to determine in this action, since we hold the complaint is based upon the ground of negligence and not on implied warranty.

It is next claimed that the court erred in sustaining an objection to the testimony of the witness Carver, who was asked a hypothetical question based upon certain facts in the case. The testimony showed that the pollution of the city water came through the mains of the Eclipse Mill Company's plant, which was situated on the Snohomish river. It appears that prior to April, 1923, that company was connected with the city water system, although it had its own pumping system connected with the river. The water taken by the mill company from the river was not fit for human consumption, and it was not intended that this water should flow into the city mains for use by the inhabitants of the city. There was a series of check valves which were intended to prevent this water getting into the city mains. However, there was a by-pass which allowed the water to go through the mains without going through the check valves that had been installed. There was a gate valve in the bypass. At that time a new main was installed, which connected the dead ends of what are known as railroad lateral and Pine street lateral. This connection was known as the Thirty-Fourth street line, and was completed on April 11. The gate valve known as gate valve A, was supposed to be kept closed to prevent water from circulating from the mill through the city mains. In addition to this, the city mains generally carried a higher pressure than the mill company's mains. An epidemic of typhoid fever in Everett during the summer of 1923 finally resulted in an investigation, which disclosed that the cause came from the pollution of the water. It was found that the gate valve A was open, and that the pressure in the city mains, temporarily lowered by heavy use of water for sprinkling, was permitting the polluted water to enter the city mains, resulting in typhoid fever. It was the contention of the city that at the time the new Thirty-Fourth street line was connected up in April, 1923, the Eclipse Mill Company had agreed to remove the by-pass, and that the new pipe line was put in for the purpose of increasing the volume of water for the benefit of the mill, and to secure a complete circulatory system throughout. The witness Carver was then asked to assume that the city had made arrangements to put this new line in, and the mill company had secured the right of way and the lumber for the purpose of inclosing the pipe, and the manager of the mill company had agreed that he would remove...