City of Huntingburg v. Morgen

• Decision Date: 29 June 1928
• Docket Number: 12,970
• Citation: 162 N.E. 255,90 Ind.App. 573
• Parties: CITY OF HUNTINGBURG v. MORGEN
• Court: Indiana Appellate Court

162 N.E. 255

90 Ind.App. 573

CITY OF HUNTINGBURG v. MORGEN

No. 12,970

Court of Appeals of Indiana

June 29, 1928

Rehearing denied November 15, 1928, Reported at: 90 Ind.App 573 at 593. Transfer denied January 9, 1930.

From Spencer Circuit Court; Fred A. Heuring, Judge.

Action by Peter Morgen against the city of Huntingburg. From a judgment for plaintiff, the defendant appealed.

Affirmed.

Elbert M. Swan, Robert W. Armstrong and Milton B. Hottel, for appellant.

Leo H Fisher, Bomar Traylor, W. E. Cox and W. C. Mason, for appellee.

OPINION

MCMAHAN, J.

This is an action by Peter Morgen against the city of Huntingburg for damages occasioned by reason of the failure of the city to furnish him water in a sufficient quantity and pressure, by reason of which a large number of greenhouse plants and products were damaged and destroyed.

The complaint alleges that plaintiff had for many years been engaged in the business of propagating, growing and selling flowers in the city of Huntingburg, and, for that purpose, owned and maintained nine greenhouses, all under glass, and controlled and heated by a system of steam boilers and pipes, and a refrigerator plant, automatically operated and controlled by water motors, where he stored and preserved cut flowers for shipment; that in the winter of 1923, and in the spring of 1924, he had many thousands of plants; that, in growing flowers and plants, one of the most destructive pests which he was required to combat was a small red spider, the only practical way of combating and destroying it being by chilling, killing and blowing it off by the forceful spraying of water at least three times a week, at which time it was necessary to have a pressure of 60 pounds to the square inch through the water hose and nozzle; that it was necessary to have the same pressure to force water into his boilers for heating and generating steam; that the defendant city then, and for more than 20 years had owned, operated and maintained for gain and profit, upon a published schedule of meter rates approved by the Public Service Commission, a public water system consisting of lakes, reservoirs, steam engines, electric pumps, standpipes, and water mains, sufficient to furnish by natural gravity a pressure of at least 60 pounds per square inch upon all water in its mains; that the city attached to the water pipe leading to plaintiff's place of business a water meter that measured the quantity of water used; that, for 13 years, defendant had continuously supplied him with water at a pressure of not less than 60 pounds to the inch, for which he had paid the city $ 40 per month; that the city agreed to continue supplying his place of business with all water and pressure necessary; that the city knew and understood that a failure to furnish plaintiff with such water and pressure would result in irreparable loss and damage to him; that he relied upon, and at all times needed, such water and pressure, which fact the city knew; that on March 14, 1924, defendant, negligently and without any warning to him, caused the water pressure in the water pipes and water hose at his place of business to be stopped so that no water would run through them, all without any fault on his part; that such want of pressure was caused by defendant connecting the water main that supplied his place of business with a new standpipe of the Southern Railway, in which it was intended to store a large quantity of water to supply the wants of the railway company; that the opening into the standpipe of the railroad was four inches in diameter, and that it took six hours continuous running of water to fill such standpipe; the connection with the railway's standpipe was so constructed as to work automatically, and was lower than plaintiff's place of business; that the opening into the main that supplied appellee's place of business was but two inches in diameter, and that, as soon as the railway began to use the water, plaintiff was unable to procure any water from defendant's water mains; that plaintiff immediately informed defendant of that fact, and that his growing plants would be damaged and ruined unless water pressure was at once and continuously furnished him, but that, for a period of 13 consecutive days, defendant negligently refused and failed to furnish plaintiff with any water of the required pressure; that later appellant furnished appellee with water but that it at times failed to supply the pressure regularly and constantly as his business required; and that, by reason of such neglect, appellee was, without negligence on his part, greatly damaged.

A motion to make more specific, to strike out parts, and a demurrer to the complaint being filed and overruled, the cause was put at issue, tried by jury and a judgment rendered against appellant for $ 9,000. The errors assigned relate to the overruling of the demurrer to the complaint and the motion for a new trial.

Appellant, acting upon the assumption that the cause of action is predicated upon an implied contract between appellant and appellee, whereby the former was obligated to furnish the latter with water, and to furnish such water at a specific pressure, insists that the court erred in overruling the demurrer to the complaint. The record, however, clearly shows that appellant, appellee, and the trial court construed the complaint as being a complaint for damages occasioned by reason of the negligence of appellant, and that the cause was tried upon that theory. That being the theory adopted by the parties and the court in the trial of the cause, that theory will be adhered to on appeal. The sufficiency of the complaint to withstand a demurrer and the sufficiency of the evidence to sustain the verdict, will, therefore, be considered by this court and determined upon the theory that the complaint is predicated on negligence.

Appellant's contention is that, in furnishing water to its inhabitants, it was acting in its governmental capacity and, in the absence of a statute or order of the Public Service Commission, it is not liable to appellee for failure to furnish him water. The cases cited by appellant, and on which it mainly relies, are chiefly cases where a municipal corporation or a public utility company holding a franchise from the municipality had been sued for damages by reason of loss of property by fire by reason of insufficient water pressure or defect in the fire prevention system.

It is generally held that a municipal corporation, in enacting an ordinance for protection against fire and in the maintenance of a fire department and system of water works for that purpose, acts in a governmental capacity in the general interest of the community, and that the municipality is not liable to a property owner for damages caused by fire. Nor is a public utility company, owning and operating a system of water works for the furnishing of water to private consumers, and for the protection of the public from fire, under a franchise or contract with the municipality, liable to a property owner for loss of property by fire caused by insufficient water pressure. Fitch v. Seymour Water Co. (1894), 139 Ind. 214, 37 N.E. 982, 47 Am. St. 258; Trustees, etc., v. New Albany Water Works (1923), 193 Ind. 368, 140 N.E. 540, 27 A. L. R. 1274; Larimore v. Indianapolis Water Co. (1926), 197 Ind. 457, 151 N.E. 333; Wright v. City Council of Augusta (1886), 78 Ga. 241, 6 Am. St. 256. A city maintains waterworks for the twofold purpose of fire protection and for supplying water to its inhabitants for daily consumption. As to the city's liability for the default or negligence of its employees in maintaining such waterworks, there is a clear line of demarcation between its liability, depending upon the purpose for which the water system is being used.

The first purpose, that of fire protection, is clearly a discretionary or governmental act. For the default or negligence of the city's employees in relation to fire protection, the city is not liable. However, in supplying water to the inhabitants of the city for daily consumption, the well-established rule is that the city is liable on the same principle that a private corporation engaged in the same business is liable.

Wigal v. City of Parkersburg (1914), 74 W.Va. 25, 81 S.E. 554, 52 L. R. A. (N. S.) 465, was an action for damages caused by the negligent construction and maintenance of two large iron water tanks which burst, killing appellant's intestate. In holding the city liable, the court said: "It is argued that, inasmuch as the waterworks were maintained in part for fire protection, which is admittedly a discretionary or governmental act, the city is not liable because it undertook to supply and did supply water for domestic use to its inhabitants through the same waterworks system. But this contention is contrary to the rule that has been adopted by practically all the courts of the country. Municipalities supplying their inhabitants with water do not maintain separate waterworks for fire protection; water for both purposes is invariably supplied through the same mains. Neither do they undertake to supply water for domestic use without at the same time providing fire protection. So that, in every case dealing with the subject of municipal liability respecting the maintenance of waterworks, it may be fairly assumed that the plant was serving a dual purpose; and the rule is that, unless the negligence complained of is the work of extinguishing fires, the municipality is liable on the same principle that a corporation engaged in the same business is liable."

Piper v. City of Madison (1909), 140 Wis. 311, 122 N.W 730, 25 L. R. A. (N. S.) 239, 13 Am. St. Rep. 1078, was an action by appellant for damages caused by water flowing...