Atlas Finishing Co. v. Hackensack Water Co.

• Decision Date: 10 November 1932
• Citation: 163 A. 20
• Parties: ATLAS FINISHING CO. v. HACKENSACK WATER CO.
• Court: New Jersey Supreme Court

163 A. 20

ATLAS FINISHING CO.

v. HACKENSACK WATER CO.

Supreme Court of New Jersey.

Nov. 10, 1932.

Action by the Atlas Finishing Company against the Hackensack Water Company.

Decree in accordance with opinion.

J. Emil Walscheid, of Union City, for plaintiff.

Edwards & Smith, of Jersey City, for defendant.

ACKERSON, C.

The complaint in this action is in three counts and the answer reserves the right to object, on or before the trial, that each of said counts fails to set forth a cause of action.

The matter now comes before me upon a motion, pursuant to rule 40 of this court, to determine the questions thus raised before the trial. The plaintiff in its brief expressly abandons the second and third counts, so they will be stricken out.

The first count alleges, in substance, that on June 23, 1921, the defendant was a "Public Utility," as defined in "An Act concerning public utilities; to create a Board of Public Utility Commissioners and to prescribe its duties and powers," approved April 21, 1911 (P. L. 1911, p. 374 [Comp. St. Supp. § *167—1 et seq.]); that at said time the defendant maintained and operated a water system or plant within the township of North Bergen in the county of Hudson, in this state, and the plaintiff owned and operated a manufacturing plant in said township and had upon the premises and in the buildings thereon a system of water pipes connected with and leading from the pipe lines of the defendant, to said buildings, with outlets therefrom for the purpose of discharging water, and also had upon said premises both in and out of said buildings numerous fire hydrants connected by means of pipes to and with the said pipe lines of the defendant, together with fire hose and hose wagons, chemical fire extinguishers, a fire alarm system and a crew of employees trained to fight any fire which might accidentally arise upon said premises. The complaint further alleges that: "On June 23rd, 1921 and for a long time prior thereto, defendant had undertaken to and did serve plaintiff with a supply of water from its said system or plant through its said pipe lines, at or upon the premises of the plaintiff aforesaid, for the purpose of enabling plaintiff by means of the pipe lines, fire hydrants, fire hose and hose wagons maintained by the plaintiff upon the said premises aforesaid to combat any fire which might accidentally originate upon the premises aforesaid, whereby it became and was the duty of defendant at all times to furnish water to plaintiff for the purpose aforesaid in sufficient quantity and under sufficient pressure to make such service safe, proper and adequate for the purpose of combating any fire which might thus arise upon said premises."

It is further alleged that on said date a fire started accidentally upon said premises which the plaintiff endeavored to combat, but that defendant, at the time and place aforesaid, "neglected and failed to furnish the water by it undertaken to be furnished as aforesaid, and wholly neglected and failed to supply plaintiff with water in quantity and under sufficient pressure to make such service safe, proper and adequate for the purpose of combating said fire," by reason of which failure the fire could not be extinguished, and it became uncontrollable and totally destroyed the buildings and other property of the plaintiff, wherefore the plaintiff seeks damages.

The plaintiff insists that this count of the complaint sounds in tort, and is intended to be an action ex delicto, and seeks to uphold the legal sufficiency of the pleading upon one or more of three theories. First, it is urged that the count is based upon a duty of the defendant to the plaintiff resulting from a contract entered into directly between the parties, thus excluding from consideration the usual situation where a water consumer has endeavored to impose liability upon a water company under a contract for a water supply made by such company with a municipality. The second theory upon which this count is sought to be upheld is that, even though there is no contract between the parties, nevertheless, the defendant having "undertaken," even though gratuitously, to furnish water to the plaintiff, it is liable to the plaintiff for the breach of a common-law duty to use reasonable care in its undertaking. The third theory is the alleged breach of a statutory duty.

Taking up the plaintiff's first theory, it is obvious, since the tort is claimed to arise out of the breach of a contractual duty, that, if the complaint does not sufficiently state a contract giving rise to the duty for the breach of which liability is claimed, the pleading must prove insufficient for that purpose.

It is apparent, as conceded by the plaintiff, that the pleading does not set forth an express contract between the parties. Reliance is placed upon an implied contract, but it is doubtful if sufficient mutuality of obligation is shown even for that purpose. Scott v. Eldridge, 2 N. J. Law, 156. In any event, the most that can be claimed for the pleading is that it states the implied engagement ordinarily arising from the relationship existing between a public service corporation and a private consumer of water. There is no allegation that the defendant agreed for a valuable consideration to supply water to the plaintiff in any quantity or at any pressure for protection against fire. Can such an engagement arise by implication? I think not.

The primary business of a water company, so far as private customers are concerned, is to furnish water as a commodity. Keeping this in mind, and further recognizing that under the law of this state the defendant is a quasi public corporation engaged in the exercise of a public use in discharging a public duty which would otherwise devolve upon the municipality itself, and furnishing water at rates fixed exclusively by a state agency, it would appear plain that it was never contemplated that from the simple relation of distributor and consumer the former undertook to assume liability for failure to furnish water to extinguish fires. In the nature of things, the compensation fixed by the supervising state agency has no relation to the assumption of any such liability; that compensation is based on the expense of furnishing water simply as a commodity; liability for the destruction of premises by fire, to which the company may be required to supply water was not taken into consideration in fixing the rates, nor, I suppose, was it even thought that any such liability could be imposed by the rate-making body or was to be assumed by the company in doing so. This is apparent on reflection. As already said, the defendant is a public service corporation, according to the pleading in question, therefore, under a duty enjoined by law, and was obligated to make connection with the premises and furnish water to any of the inhabitants of the municipality who desired it. No one person had a right superior to another to demand that he should be supplied, and the legal duty is imposed upon the company to furnish it equally to the extent that its system was capable of doing it. The plaintiff had a right to install fire hydrants, as had any other member of the municipality, and to require the water company to connect its mains with the service pipes supplying such hydrants,...