City of Des Moines v. Des Moines Water Co., 32417.

• Citation: 175 N.W. 821,188 Iowa 24
• Decision Date: 20 January 1920
• Docket Number: No. 32417.,32417.
• Parties: CITY OF DES MOINES v. DES MOINES WATER CO.
• Court: United States State Supreme Court of Iowa

188 Iowa 24

175 N.W. 821

CITY OF DES MOINES

v.DES MOINES WATER CO.

No. 32417.

Supreme Court of Iowa.

Jan. 20, 1920.

Appeal from District Court, Polk County; Charles A. Dudley, Judge.

Action at law to recover from defendant the amount of a judgment recovered against the plaintiff city in favor of Lulu M. Overstreet, administratrix, on account of personal injuries sustained by her intestate, Archie P. Overstreet; such injury having been caused by a defect in a public sidewalk. The city, having paid the judgment, demands reimbursement from the water company on the theory that the defect in the walk was due to the neglect of the water company in the maintenance of a so-called “stop box” and pipe in such manner as to create an obstruction over which Overstreet fell and was injured. There was a trial to a jury, and at the close of all the testimony the court sustained defendant's motion for a directed verdict in its favor. From this order and from the judgment rendered on the verdict, the city appeals. Reversed.H. W. Byers, Reson S. Jones and D. Cole McMartin, all of Des Moines, for appellant.

Parrish & Cohen, of Des Moines, for appellee.

WEAVER, C. J.

The grounds of the motion for a directed verdict were in substance as follows:

(1) That the evidence discloses no negligence of the water company contributing in any degree to the injury or death of Overstreet, and does not show that the company was under any obligation to maintain the pipe or “stop box” over which Overstreet fell.

(2) That the evidence shows conclusively that the condition of the walk referred to was due to the negligence of the city alone.

(3) That, if the company owed any duty with respect to the maintenance of the pipe or stop box, the city was also negligent, and the accident was occasioned by the joint tort of the city and the company, and neither can recover from the other.

The fact situation is the subject of but little dispute. The water furnished by the defendant company is distributed through a system of mains laid along the course of the streets, and from the mains it is supplied to individual users through branch or service pipes extending from the mains to the adjacent lots and buildings. The method of obtaining these connections for the use of adjacent property is about as follows: The property owner first makes written application to the company therefor, and is told to go to a licensed plumber, who obtains from the water company a permit to tap the main, and from the city a permit to open the street. The plumber then digs down to the main to a point where the connection can be made and opens a trench as far as may be necessary for laying the service pipe. In laying this pipe, when the plumber reaches a convenient point between the curbing and the lot line, he puts in a “stop box” and stopcock by which the flow of water through the pipe is controlled. To provide means for operating this stopcock a pipe extends therefrom to the surface above, and in the pipe is a rod connecting with the stopcock. By this rod, with the aid of a key, the cock is turned to admit or cut off the water. The property owners do not usually have these keys, and the water is ordinarily turned on and off by the company. From this stop box the service pipe is extended into the building, ordinarily into the cellar, where it is connected with a meter by which the supply is measured. There is also another stopcock at the meter. When the work is done, the plumber reports it to the water company and furnishes it with a plat showing the location of the stop box. The cost of the work we have described is paid by the property owner, but the meter is furnished and owned by the company. Concerning the practical use made of the facilities we have described, the principal managing officer of the defendant, after testifying to matters already mentioned, says, among other things:

That when a water user gives notice that he is about to move “we shut off the water; turn it off at the stop box. One of our men takes a key for that particular box, if it requires a different key, and goes to the stop box and cuts off the water and leaves it locked. * * * The property owner has no authority whatever either from the company or the city to interfere with that water box at all, except to make proper use of it. If you had a house upon Fifth street that was connected up with our plant, and you were not living there and were not paying for water, and you were not getting any water from us, you would not have any right to go and open that up. You would have to get authority from the company. * * * If a customer on our books does not pay his bill, or if we have a controversy with him about the water, we enforce our orders and demands by shutting off the water at the stop box we are talking about. * * * The water consumer has no right or authority to touch the stop box or to open it up again unless he gets authority from the company. That was the practice and the rule with respect to this house where the accident occurred. We have one invariable rule; that is, if the water is turned off for nonpayment of rent, the property owner must not turn it on again until he pays. * * * We have another fixed rule, and that is that we will not furnish water to any one through a water service connection until the stop box attachment is made.”

The evidence tends also to show that the pipe from the stop box to the surface was 1 1/2 inches in diameter and was covered by an iron cap screwed to the top. This cap, as we take it, stood substantially level with the sidewalk at the time the connection was completed, but in the course of years the walk had so settled as to make the top or cap protrude 2 or 3 inches above the surface. It was over this obstruction the deceased, Overstreet, is alleged to have fallen and received fatal injuries. After his death action was brought against the city by the administratrix of his estate, charging the city with negligence in permitting said pipe to thus obstruct the street and render the use of the street dangerous for pedestrians. To said suit the water company was also made a defendant, but before any action had been taken therein the administratrix dismissed her suit as to said company. Thereafter the city entered into a settlement and compromised with the administratrix concerning her claim for the agreed sum of $2,500 damages and $24.05 costs, which was then and there paid her for the benefit of the estate of the deceased. This settlement, the appellee herein concedes, was reasonable and fair and made in good faith.

The foregoing statement is sufficient to present the real nature of the claim and defense. Assuming it's truth, would the jury have been justified therefrom in finding the defendant company chargeable with negligence on account of the condition of the sidewalk as affected by the water pipe protruding from its surface?

I. In approaching and considering the issues in this case it is important to keep in mind the fact that this controversy is not one between the water company and the owner of the property for the use of which the service pipe and connection were constructed. Were the water company and property owner here disputing as to which, if either, is primarily bound to maintain and care for the stop box and pipe constructed in or under the sidewalk, the inquiry as to who in fact asked for it or ordered it or constructed it or paid for it would be quite material and perhaps decisive; but for reasons which will be apparent as we proceed, those matters are far from conclusive in this action. The inquiry here is not at all what duty the water company owed or owes to the property owner with whose lot or building the water connection is made, but what duty, if any, the company owed or owes to the city and public whose streets it uses for its own profit in serving the property owner.

[1][2] For this reason we are unable to agree with appellee that the fact appearing in the record that by city ordinance no one was authorized to make any excavation in the streets without application to or permit by the city or its board of public works, and that the application in this instance was made by, and the permit issued to, the property owner, or that he was himself a licensed plumber and himself performed the work, is of itself controlling of the case before us. Nor do we think it quite a correct statement of the case as developed by the testimony that the only interest defendant had in the stop box and its attachments was “simply the right to use it in common with any plumber or other person who had occasion to shut off the water.” The clear effect of the defendant's own testimony and the explanation which seems to have been given very frankly by its superintendent on the witness stand, to say nothing of common knowledge and common observation of the methods everywhere in...