Consol. Biscuit Co. v. Illinois Iowa Power Co.

• Decision Date: 11 January 1940
• Docket Number: Gen. No. 6.
• Parties: CONSOLIDATED BISCUIT CO. v. ILLINOIS IOWA POWER CO.
• Court: United States Appellate Court of Illinois

303 Ill.App. 80

24 N.E.2d 582

CONSOLIDATED BISCUIT CO.

v.ILLINOIS IOWA POWER CO.

Gen. No. 6.

Appellate Court of Illinois, Fourth District.

Nov. 29, 1939.

Rehearing Denied Jan. 11, 1940.

Appeal from Circuit Court, Jefferson County; Roy E. Pearce, Judge.

Action by the Consolidated Biscuit Company against the Illinois Iowa Power Company to recover damages arising out of alleged failure of defendant to furnish water for extinguishing a fire. Judgment for defendant, and plaintiff appeals.

Affirmed. Curtis Williams, of Mt. Vernon, and Clausen, Hirsh & Miller and Brown, Fox & Blumberg, all of Chicago, for appellant.

Hamilton, Black & Klatt, of Peoria, and Gilbert & Gilbert, of Mt. Vernon, for appellee.

STONE, Presiding Justice.

This suit is predicated upon three counts of an original complaint and five counts of an amended complaint, filed by appellant, in the Circuit Court of Jefferson County. By the suit generally, the plaintiff in the lower court sought to recover damages in the sum of $400,000, arising out of the alleged failure of the defendant to furnish water for use in extinguishing a fire which occurred at plaintiff's plant in the City of Mt. Vernon, on January 30, 1937.

The three counts of the original complaint charge in substance, that the plaintiff was engaged in the baking business in the City of Mt. Vernon, its property consisting of a four story structure of concrete and brick and a two story, frame warehouse building, and that the defendant was at the time complained of, doing business as a public utility company in the City of Mt. Vernon; that on September first, 1902, the City of Mt. Vernon passed an ordinance known as Ordinance No. 234, providing for a water works supply for the said City, which ordinance was made a part of the complaint, and which ordinance required certain standards of water pressure on the part of the defendant, as assignee of Herbert R. Kingman; that certain water hydrants mentioned therein, and rented by the city were located near the property of the plaintiff; that the defendant had impliedly agreed to furnish water to plaintiff's building, in compliance with the standards of the said ordinance; that a fire occurred at the plaintiff's property on January 30, 1937 and that as a direct result of the defendant's alleged failure to furnish sufficient water pressure, plaintiff's property was destroyed.

Count one of the amended complaint proceeds upon the theory that there was an implied contract whereby defendant was to furnish water continuously to the plaintiff at a specified pressure, and that by reason of the defendant's breach of this contract, plaintiff was damaged. Count two is predicated upon the theory that there was a legal duty, aside from the contract, on the part of defendant to furnish water at specified pressure to plaintiff's private hydrants and water facilities and that defendant's failure in this regard constituted a tort against the plaintiff. Count three proceeds upon the theory that there was an implied contract in force between plaintiff and defendant whereby defendant agreed to furnish plaintiff water continuously for its private fire hydrants in amounts reasonably adequate for fighting fire, and plaintiff was damaged by reason of defendant's failure to fulfill this contract. Count four is based on the theory that there was a legal duty upon the defendant to furnish plaintiff water, adequate to combat a fire and its failure to do so constituted a tort. Count five is predicated upon the theory that the defendant, in failing to furnish water, as required, violated Section 32 of Chapter 111 2/3 of the Public Utility Act, Ill.Rev.Stat.1939, which, it is claimed, would constitute prima facie evidence of negligence, and that such conduct constituted a tort. Motion to dismiss all of these counts was allowed by the trial court, and the errors relied upon for reversal are the action of the lower court in sustaining such motion and entering judgment for the defendant.

Counts 1, 2 and 3 of the original complaint and 1 and 3 of the amended complaint, constitute a claim ex contractu and counts 2, 4 and 5 of the amended complaint are ex delicto. Broadly then, there are two theories upon which plaintiff seeks to fix liability upon the defendant, one sounding in contract and the other in tort.

Appellant, in contending that there is a liability based upon contract, relies primarily upon Ordinance 234, providing for the extension, operation and maintenance of a water supply for the City of Mt. Vernon, which ordinance constitutes a contract between the City of Mt. Vernon and the defendant as the assignee of Herbert R. Kingman. There is no allegation of any express contract between plaintiff and defendant. Plaintiff contends that said ordinance was a contract between defendant and the said City of Mt. Vernon, which said contract was made for the benefit of the inhabitants and property owners of the said City of Mt. Vernon, including the plaintiff; that by reason of defendant's breach of this contract, the plaintiff, as a beneficiary thereof, may recover against the defendant; that the ordinance, and the long continued use of the water facilities furnished by the defendant to the plaintiff, created an implied contract whereby defendant agreed to furnish continuously to plaintiff water to its private fire hydrants in amounts reasonably adequate for fighting fire.

By the great wieght of authority in this country, where a city contracts with a private party or corporation to operate water-works for the purpose of furnishing water to the city and its citizens, a property owner cannot hold the city or water company liable for loss by fire, occasioned by the failure of the water company to furnish an adequate supply of water for fire protection. This question has been before the highest judicial tribunals of a large number of other states in this country and in all of them, except three, Kentucky, North Carolina and Florida, the rule above stated has been adhered to, with which rule we concur. Rostad v. Chicago Suburban Water & Light Co., 163 Ill.App. 63;Peck v. Sterling Water Company, 118 Ill.App. 533;City of Galena v. Galena Water Company, 132 Ill.App. 332;Metropolitan Trust Company v. Topeka Water Company, C.C., 132 F. 702;Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896, 62 A.L.R. 1199;Trustees of Jennie DePauw Memorial Church v. New Albany Water Works Company, 193 Ind. 368, 140 N.E. 540, 27 A.L.R. 1274;Hone, et al. v. Water Company, 104 Me. 217, 71 A. 769, 21 L.R.A.,N.S., 1021; Mills v. Moseley, 1935, 50 Ga.App. 536, 179 S.E. 159;German Alliance Insurance Co. v. Homewater Supply Company, 226 U.S. 220, 33 S.Ct. 32, 57 L.Ed. 195, 42 L.R.A., N.S., 1000; Prindle v. Sharon Water Co., 105 Conn. 151, 134 A. 807;Atlas Finishing Co. v. Hackensack Water Co., 163 A. 20, 10 N.J.Misc. 1197;Ellis v. Birmingham Water Works Co., 187 Ala. 552, 65 So. 805.

The rulings in those cases are generally to the effect that there is no privity of contract between the water company and a citizen which will support the action, and that the contracting company cannot be charged with a greater liability than the city itself. The contract, which is the ordinance, was not enacted for the protection of any particular property or person, but was for the general benefit of all the property and persons within the municipal limits and was entered into by the city as a public agency, solely for that purpose, and in the...