City Of Richmond v. Va. Bonded Warehouse Corp.

• Decision Date: 16 June 1927
• Citation: 138 S.E. 503
• Court: Virginia Supreme Court
• Parties: CITY OF RICHMOND. v. VIRGINIA BONDED WAREHOUSE CORPORATION. VIRGINIA BONDED WAREHOUSE CORPORATION. v. GRINNELL CO., Inc.

138 S.E. 503

CITY OF RICHMOND.

v.VIRGINIA BONDED WAREHOUSE CORPORATION.

VIRGINIA BONDED WAREHOUSE CORPORATION.

v.GRINNELL CO., Inc.

Supreme Court of Appeals of Virginia.

June 16, 1927.

^*

Error to Law and Equity Court, Part 2, of City of Richmond.

Action by the Virginia Bonded Warehouse Corporation against the City of Richmond and the Grinnell Company, Inc. Judgment for plaintiff against the City of Richmond and for the Grinnell Company against the plaintiff, and the City of Richmond and plaintiff bring error. Affirmed.

James E. Cannon, R. T. Lacy, Jr., and L. F. Cary, all of Richmond, for plaintiffs in error.

Leake, Leake & Spicer, Scott, Lloyd & Scott, and Parrish, Butcher, Churchman & Coulbourn, all of Richmond, for defendant in error.

BURKS, J. The Virginia Bonded Warehouse Corporation brought an action of trespass on the case against the city of Richmond and the Grinnell Company, Inc., to recover damages for negligently flooding the warehouse of the plaintiff. There was a verdict and judgment in favor of the plaintiff against the city of Richmond for $12,252.39, and in favor of the Grinnell Company against the plaintiff. There is only one record, but two petitions and two writs of error—one granted the city of Richmond to the judgment against it, and the other to the Virginia Bonded Warehouse Corporation to the judgment in favor of the Grinnell Company on the merits and for its costs. The two cases were argued together.

Each of the plaintiffs in error stands in this court practically as on a demurrer to the evidence, and the case will be stated from that standpoint.

So far as the liability of the city of Richmond is concerned, the facts are, in the main, as stated in the brief of counsel for the warehouse company. The facts are that the plaintiff, Virginia Bonded Warehouse Corporation, is a corporation organized and existing under the laws of the state of Virginia, and is engaged in the business of a warehouseman in the city of Richmond. On and prior to the 17th day of September, 1923, the plaintiff owned and operated three warehouses on Cary street between Seventeenth and Eighteenth streets, in the said city, which warehouses were commonly known, and will be designated, as warehouse A, warehouse B, and warehouse C. Warehouses A and G were adjoining buildings, located on the north side of Cary street, which street runseast and west, and warehouse B was located across Cary street on the south side. In these warehouses, prior to the aforesaid time, the plaintiff had received at different times, from sundry persons, firms, and corporations, large quantities of goods, wares, and merchandise for storage and safe-keeping, in return for which it received a compensation in money as rates and charges for the safe-keeping of said goods, and for which the plaintiff had issued and delivered to the persons so storing such goods its receipts, commonly known as warehouse receipts. Some years prior to September 17, 1923, the plaintiff had installed in its warehouse A an automatic sprinkler system, known as the Grinnell Automatic Sprinkler System. This sprinkler system was supplied with water from the waterworks of the city of Richmond by means of a six-inch supply pipe leading from the premises of warehouse A to the city main in the middle of Cary street. On the roof of warehouse A was a 30, 000 gallon tank which was also connected with the sprinkler system in the warehouse. At this time warehouse C, adjoining warehouse A on the west, was without a sprinkler system. As a consequence, the insurance premiums on this building were most costly, and in addition there were many persons who were unwilling to risk the fire hazard and who refused to have their goods stored in such a warehouse. The result was that the plaintiff resolved to install an automatic sprinkler system in warehouse C for its own peculiar private benefit. Accordingly, on the 14th day of May, 1923, the plaintiff entered into a contract with the Grinnell Company, of Providence, R. I., a corporation engaged in the manufacture and installation of their own sprinkler systems, for the installation of an automatic sprinkler system in warehouse C. Under the terms of the contract, the Grinnell Company was to do the work as an independent contractor. It took entire and complete control over the work of installation, and left nothing to be performed by the plaintiff. The plaintiff contracted for a "turnkey" job.

The Grinnell Company agreed to perform its contract on the basis of expert knowledge and skill, and for such a standard of care and prudence the plaintiff agreed to pay the sum of $5,215. The Grinnell Company planned to have the sprinkler system they were installing in warehouse C supplied with water from the same supply pipe which supplied the system already in warehouse A, and which ran from the premises to the city main in Cary street. In order to do this, it would become necessary to substitute for the "L" or "elbow" pipe, which was then serving warehouse A, a "T" or double connection pipe. The place decided upon by the Grinnell Company to sever the connection, as being the most practical and convenient, was a point on the premises of warehouse A, in a room mentioned in the evidence as the "valve room, " and the pipe to be severed was the 6-inch supply pipe, previously mentioned, leading from warehouse A and connecting the several pipes comprising the sprinkler system in said warehouse with the city water main in Cary street. The water in said pipe, directly connected with the city main, was under, a pressure of 85 pounds to the square inch. On Friday, the 14th day of September, the Grinnell Company had progressed so far with its work that nothing remained to be done except to connect the sprinkler system just installed in warehouse C with the city water supply. In order to do this, as planned by the Grinnell Company, it then became necessary to have the city water coming from the main in Cary street into warehouse A, by means of the 6-ineh supply or service pipe, cut off, so that when the said pipe was severed there would be no flood of water to damage the goods in warehouse A. This could only be done by operating a "cut-off" valve installed by the city of Richmond in Cary street in front of warehouse A. This cut-off valve, as well as the supply pipe leading into warehouse A, which it regulated, was installed by the city of Richmond, and both were under the exclusive control of the city. Accordingly, on the said Friday, the Grinnell foreman requested Mr. Hoadly, president of the plaintiff corporation, to have the city water department cut off the water coming into warehouse A. As the proper cut-off valve was in the city streets, no one but the city of Richmond had the right to cut off the city water. Mr. Hoadly called up the water department, and, after some delay and several unfilled promises by the persons he talked to, on Saturday, September 15, he finally got in touch with Mr. Trafford, the then director of public utilities and head of the city water department, personally, over the phone. Mr. Hoadly explained to Mr. Trafford that he was having installed an automatic sprinkler system in warehouse C, which was to be supplied from the city water system from the same service pipe that was supplying warehouse A, that the service pipe leading into warehouse A was to be severed, and that consequently he wanted the city to send some one to cut off the city water leading into the service pipe of warehouse A. As a result, at the direction of Mr. Trafford, on Monday, September 17, one Lucas, an employee of the city water department, came to the warehouse to cut the water off. They went to a valve in the street and attempted to turn off the water, but found the key they had brought was too short. Whereupon they went to a nearby fire engine house and returned with a longer key, with which they thought they had turned off the water going into warehouse A. It later transpired that this was a "dead" valve, having, so far as the evidence shows, no connection with any pipes. At any rate, they reported to a Mr. Carter, superintendent of the plaintiff, thatthe water was cut off and that they would, when t^esired, return and turn it back on. Thereupon Carter went to the Grinnell employees and told them that the city men said the water had been cut off.

Relying upon this information, the employees of the Grinnell Company proceeded to make the desired connection. It developed that the employees of the city had, by mistake, turned the wrong valve, and had not cut the water off, and, as a result, when the pipe in warehouse A was cut by the employees of the Grinnell Company, that warehouse was flooded with water, and the plaintiff was damaged upwards of $12,000, for which this action was brought.

Numerous errors are assigned by the city of Richmond, but it is said in its petition for writ of error that—

"These several assignments of error will not be taken up and discussed seriatim, for the reason that many of these overlap and therefore needless repetition would ensue. It is believed that the issues involved can best be presented to your honors by an analysis of the grounds assigned in petitioner's motion to dismiss, as follows: (1) The evidence clearly shows that, in offering to the plaintiff free of charge the facilities for preventing the inception and spread of fire, petitioner was exercising a governmental function, for the improper exercise of which petitioner cannot be held liable in damages; (2) that the evidence clearly shows that petitioner was not guilty of negligence in attempting to shut off the water at plaintiff's request; (3) that the evidence clearly shows that the plaintiff and its agents (including Grinnell) were guilty of contributory negligence for which there can be no recovery; (4 and 5) that the evidence clearly shows that the injury complained of was caused by the intervening and superseding negligence of Grinnell, and that the alleged negligence...