Birmingham Water-Works Co. v. Ferguson

• Citation: 51 So. 150,164 Ala. 494
• Parties: BIRMINGHAM WATERWORKS CO. v. FERGUSON.
• Decision Date: 30 June 1909
• Court: Supreme Court of Alabama

51 So. 150

164 Ala. 494

BIRMINGHAM WATERWORKS CO. v. FERGUSON.

Supreme Court of Alabama

June 30, 1909

Rehearing Denied Dec. 16, 1909.

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by J. W. Ferguson against the Birmingham Waterworks Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Simpson Anderson, and Denson, JJ., dissenting.

London & Fitts, for appellant.

C. D Ritter and Frank S. White & Sons, for appellee.

DENSON J.

This is an action in assumpsit by the plaintiff against the defendant, Birmingham Waterworks Company, for the breach of an alleged contract between the parties whereby, it is averred, the defendant agreed to supply plaintiff water at his residence, No. 2423 Fourth avenue, at the rate of $5.50 a quarter, payable in advance at the beginning of each quarter. The breach alleged, is that on, to wit, the 25th day of July 1906, the defendant's agent, without excuse for so doing, and while plaintiff was absent from his home, cut off plaintiff's supply of water, and kept it off for, to wit, 30 hours. The principal point presented for decision by this appeal involves the measure of damages.

In cases of this nature, it matters not what damages are alleged or claimed in the complaint. If they are such as are not recoverable in the action, that question may be raised by objections to testimony offered to prove them, or by charges requesting their exclusion from the consideration of the jury. The plaintiff, over the objections of the defendant, was allowed to prove that by reason of the cutting off of the water he was put to great inconvenience, that he could not cook for want of water, that he had to go to a neighbor's for water, and that he was deprived of the use of the bath tub and of the water-closet, "which got into bad fix and made quite a stench."

The court, moreover, charged the jury as follows: "I charge you, further, that if the plaintiff suffered inconvenience and annoyance from the wrongful cutting off of the water, he is entitled to recover damages from such inconvenience and annoyance, if such damages were in contemplation of the parties for the breach of the contract at the time it was made, if it was made." Again, the court charged the jury as follows: "If the nature of the contract was such that a breach of it would cause the plaintiff inconvenience and annoyance, and these were naturally incident to the breach of it, and these facts were known to the parties to the contract at the time of making it, then the plaintiff upon such breach would be entitled to recover damages for such inconvenience, annoyance, and discomfort as he may have suffered."

One of the cardinal rules for the estimation of damages for the breach of a contract is: Only such damages should be awarded as naturally result or flow from the breach, and which are within the contemplation of the parties at the time the contract is made. "We have a class of cases where the rule is laid down that, in actions to recover for the breach of a covenant or a stipulation in a contract, the measure of recovery is the actual injury caused by the breach; and this is the general measure of damages for the breach of the contract." "That the injury must be the natural and proximate result of the breach of the contract" is also a fundamental rule. "Accidental consequences, not likely to ensue from the wrong done, are generally too remote to be the foundation of a recovery." Culver v. Hill, 68 Ala. 66, 44 Am. Rep. 134; Burton v. Henry, 90 Ala. 281, 7 So. 925.

The telegraph cases referred to by counsel for appellee, in which we have held that mental anguish is an element of damage, are a class to themselves, as are also cases for breach of promise to marry. In the telegraph cases, severally, the message which the telegraph company contracted to transmit was between persons of a close degree of relationship, and related to exceptional events, such as sickness or death, or between persons so related that a failure to deliver the message obviously comprehended mental distress and anguish, in which respect damages were held to be recoverable, because within the contemplation of the parties. So these cases are not entirely apt as authority upon the question we have in hand. W. U. T. Co. v. Westmoreland, 151 Ala. 319, 44 So. 382. The case last cited was an action in tort, for the failure to deliver what is termed a "social message," sent by a sister to her brother, requesting him to meet her at the train. This court held that the damages should be estimated as for a breach of contract, that the message did not relate to matters which would bring within the contemplation of the parties to the contract the idea of mental anguish as the result of a possible failure to deliver, and, consequently, that there was no right to recover therefor.

Another case cited by appellee, Freeman v. Macon Gas, Light & W. Co., 126 Ga. 843, 56 S.E. 61, 7 L. R. A. (N. S.) 917, is not decisive of the question. This was a case in which the petition "set forth a cause of action in tort, and the particular tort alleged was a willful breach by the defendant company of a public duty which it owed to the plaintiff as a consumer of the water it undertook to supply to the inhabitants of the city," and was not for a breach of contract at all. It was held in that case that the plaintiff had no right to damages for any injury or inconvenience the members of his family may have suffered, independent of those which he sustained, as a consumer, in being deprived of his means of providing himself and his household with water for domestic purposes.

Appellee also refers to section 865, p. 2586, Sutherland on Damages. The text referred to is a quotation from an Indiana case ( Moyer v. Gordon, 113 Ind. 282, 288, 14 N.E. 476) which was also a tort action. In this connection it may be well to advert to the distinction between the rules for the admeasurement of damages in actions ex delicto, and those in actions ex...