City Of Richmond v. Hood Rubber Prod.S Co

• Decision Date: 11 March 1937
• Citation: 190 S.E. 95
• Parties: CITY OF RICHMOND . v. HOOD RUBBER PRODUCTS CO., Inc
• Court: Virginia Supreme Court

190 S.E. 95

CITY OF RICHMOND .

v.HOOD RUBBER PRODUCTS CO., Inc

Supreme Court of Appeals of Virginia.

March 11, 1937.

.

Error to Law and Equity Court of City of Richmond; Robt. N. Pollard, Judge.

Action by the Hood Rubber Products Company, Inc., against the City of Richmond. Judgment for plaintiff, and defendant brings error.

Judgment reversed and judgment rendered for defendant.

Argued before CAMPBELL, C. J., and HUDGINS, GREGORY, EGGLESTON, and SPRATLEY, JJ.

James E. Cannon and Ordway Puller, both of Richmond, for plaintiff in error.

John H. Bocock and McGuire, Riely & Eggleston, all of Richmond, for defendant in error.

GREGORY, Justice.

The Hood Rubber Products Company, Inc., instituted an action against the City of Richmond for damages alleged to have been occasioned by the breaking of one of the city's water meters, through which leaked large quantities of water that ran into the basement of the property occupied by it, and materially damaged quantities of leather, rubber goods, thread, etc. The trial in the lower court resulted in a verdict and judgment in favor of the Hood Rubber Products Company, Inc., which will be referred to as the company.

The facts in the case are practically uncontradicted. For many years prior to the time of this occurrence, the City of Richmond had been engaged in conducting its own water system and in the sale of water to its consumers. The leak in the meter occurred on the 7th day of June, 1934, at which time the city had approximately 45, 000 water meters in use.

In the early part of 1934, the company had leased the premises known as 824 West Broad street for the establishment of a branch office for the conduct of its business of dealing in leather and rubber goods, shoe polish, threads, etc. The company was furnished water service to supply a lavatory and washstand in the building. It was furnished through a main which was located in Broad street. A service pipe was connected with this main and it carried water from the main to the meter which was located about 18 inches below the ground, under the sidewalk, and near the curb. After the water passed through the meter, it continued through the service pipe under the sidewalk and into the basement of the building where pipe connections to the lavatory and washstand were made.

The floor of the basement of the building was of dirt and the company stored its goods there. The goods were packed upon pieces of timber which were laid upon the floor.

On the morning of June 7th, Mr. J. T. Ellis, Jr., the branch manager for the company, went into the basement and found it dry and in good condition, just as it had been since the time the company began its occupancy of the property. About 3 o'clock that afternoon, Mr. Ellis went into the basement again and found water running through numerous openings in the front wall of the building into which the service pipe from the meter entered. He also found water of considerable depth standing in the basement. He immediately notified the city water department of thiscondition and within ten minutes after the notice had been given an employee of this department cut the water off at the meter and thereby immediately stopped the flow of the water into the basement. The meter was disconnected from the service pipe and removed and a new meter installed.

An examination of the meter disclosed that two of the bolts and washers holding the bottom to the meter had given away and caused the bottom to crack; that the washers had rotted; the gasket between the bottom and the meter had blown out on one side; and through this opening the water flowed through the earth, through the basement wall and into the basement.

At the conclusion of the evidence of the company and also at the conclusion of all the evidence, counsel for the city moved to strike it on the ground that there was no evidence on which a verdict for the company could be supported. These motions, however, were overruled. This ruling of the trial court was made the basis of one of the assignments of error.

The other assignment involved the correctness of the ruling of the court in refusing the first instruction offered by the city, amending and granting it. The instruction as offered read as follows:

"The Court instructs the jury that in order to hold the defendant liable for a defect in its water meter, it must be shown that the city had actual or constructive notice of the defect which caused the damage and had a reasonable time to repair it or guard against any damage that might reasonably be expected to result therefrom after having such notice; and that by constructive notice is meant that the defect by which the damage is alleged to have been caused, had been so open and notorious and continued for such a length of time before the alleged damage, that the city, by its proper officers, exercising ordinary care, should have acquired knowledge of such defect."

The amendment consisted in striking out this language, "had been so open and notorious and continued for such a length of time before the alleged damage, " and inserting in its place the following, "had existed and continued for such a length of time before the alleged damage."

The sole allegation of negligence in the notice of motion was that the city had maintained a defective meter. It was not alleged that it had been improperly installed, or that the city had failed to inspect it. In its grounds of defense the city denied that it was guilty of negligence. It also denied that the meter was defective, but claimed that if it were defective, the defect was latent, and could not have been discovered by the exercise of ordinary care and that the city had no notice of any defect or of any water in the basement until 3 o'clock in the afternoon of June 7th, and within ten minutes thereafter the water was turned off.

Under the pleadings, the issue made was (a) whether the city maintained a defective meter, and (b) if so, did the city have notice of it. At the trial the evidence established that the meter was defective. The washers had rotted, the gasket had "blown out, " and the bottom had cracked and given away. The only remaining essential necessary to fix liability upon the city was the establishment of notice to it, either actual or constructive. In other words, if the city knowingly maintained a defective meter at the premises in question, it was liable for the damage done by the water leaking through it and into the basement.

The court below refused to apply the doctrine of res ipsa loquitur and we agree that the doctrine has no application. To justify its application here required a showing that the instrumentality (the meter) was under the exclusive control of the defendant. This was established. In addition it was necessary that the cause of the accident be unexplained or unidentified, because it is only where the cause of the accident has not been ascertained that a necessity for the application of the doctrine arises. It applies where the injured person is powerless to ascertain the cause. In the case at bar the cause of the injury to the company was ascertained. It was shown to be a defective meter which permitted the escape of water. The defect was clearly established by the evidence. 20 R.C.L. page 187; 45 Corpus Juris pages 1205 and 1206.

In Peters v. Lynchburg Light & Traction Company, 108 Va. 333, 61 S.E. 745, 746, 22 L.R.A.(N.S.) 1188, the court said: "The doctrine rests upon the assumption that the thing which causes the injury is under the exclusive management of the defendant, and the evidence of the true cause of the accident is accessible to the defendant and inaccessible to the person injured. Ross v. Double Shoals Cotton Mills, 140 N.C 115, 52 S.E. 121, 1 L.R.A.(N.S.) 298; Greenleaf on Ev. (Wigmore) § 2509; 1 Shear. & Red. on Neg. § 59."

In Norfolk Coca-Cola Bottling Works, Inc., v. G. Krausse and E. L. Bowen, 162 Va. 107, 173 S.E. 497, 499, it is said: "We have held that it [res ipsa loquitur] is an evidential presumption sometimes resorted to in the absence of evidence, but that it is not to be applied when evidence is at hand. Riggsby v. Tritton, 143 Va. 903, 129 S.E. 493, 45 A.L.R. 280; Chesapeake & O. Ry. Co. v. Baker, 149 Va. 549, 140 S.E. 648, 141 S.E. 753; (on rehearing) Id, 150 Va. 647, 143 S.E. 299. Here evidence is at hand and the doctrine does not apply."

In Virginia the doctrine, if not entirely abolished, has been limited and restrict-to a very material extent. See Chesapeake & O. Ry. Co. v. Tanner, 165 Va. 406, 182 S.E. 239, and Virginia Electric & Power Company v. Lowry, 166 Va. 207, 184 S.E. 177.

It is conceded that the city in conducting its water plant and in supplying water for domestic and commercial purposes to its consumers is engaged in such undertaking in its private capacity. It is also conceded that in operating its water business the city is not an insurer and that before one can recover damages for injuries to property occasioned by a leaking or bursted meter or water pipe it is essential that negligence in the construction or maintenance of the defective meter or water pipe be established. 27 R.C.L. pages 1400 and 1401; Mann Bros. v. Henderson, 154 Ky. 154, 156 S.W. 1063; Little-field v. Newport Water Co, 110 Me. 129, 85 A. 482; McCord Rubber Co. v. St. Joseph Water Co, 181 Mo. 678, 81 S.W. 189; Esberg Cigar Co. v. Portland, 34 Or. 282, 55 P. 961, 43 L.R.A. 435, 75 Am.St.Rcp. 651; City of Paris v. Tucker (Tex.Civ. App.) 93 S.W. 233; Rice v. St. Louis, 165 Mo. 636, 65 S.W. 1002.

When we advert to the allegation in the notice, there was no charge of faulty construction or installation. The sole charge was the maintenance of a defective meter. There is no evidence which shows that the meter was improperly installed. It was placed 18 inches under the sidewalk, in the ground and in a regular meter box. There is no evidence which tells us that this was improper installation. In fact, it is common knowledge that great numbers of water meters...