Ellis v. Birmingham Waterworks Co.

• Decision Date: 11 June 1914
• Docket Number: 847
• Citation: 65 So. 805,187 Ala. 552
• Parties: ELLIS v. BIRMINGHAM WATERWORKS CO.
• Court: Alabama Supreme Court

65 So. 805

187 Ala. 552

ELLIS v. BIRMINGHAM WATERWORKS CO.

No. 847

Supreme Court of Alabama

June 11, 1914

Rehearing Denied June 30, 1914

Appeal from City Court of Birmingham; John C. Pugh, Judge.

Action by Rhoda W. Ellis against the Birmingham Waterworks Company. Judgment for defendant, and plaintiff appeals. Affirmed.

McQueen & Ellis, and Harsh, Beddow & Fitts, all of Birmingham, for appellant.

Percy Benners & Burr, of Birmingham, for appellee.

MAYFIELD J.

This was an action by the appellant, to recover damages of the appellee, for the loss of property destroyed by fire on account of the Waterworks Company's failure to furnish sufficient water and water pressure with which to put out the fire which destroyed appellant's property.

The complaint contains several counts, but each is grounded upon the Waterworks Company's failure to so furnish sufficient water and water pressure. Some of the counts allege negligent failure to so furnish sufficient water, and others allege the wanton and intentional failure to furnish sufficient water and water pressure. The complaint shows that the plaintiff was a citizen and taxpayer of the city of Birmingham, in which city she owned the property which was destroyed; that the defendant water company furnished water to the city and the residents thereof, including the plaintiff, under contract between the Waterworks Company and the city of Birmingham, which contract is set out at length in one of the counts; that the water company had a franchise from the city of Birmingham to use its streets for the purpose of operating a waterworks system therein; and that the said public service corporation negligently failed to supply water, to and through the fire department of the city of Birmingham sufficient to extinguish the fire; that the defendant had for a long time operated such system of waterworks in that city and that such system was the only source of water supply, for protection against fire, in the city of Birmingham. The defendant water company demurred to the complaint and to each count thereof. The demurrers raised the question of law whether any liability of the defendant to the plaintiff, for the losses by the fire, was shown in the complaint; whether there was any liability at common law or by statute, or under or by virtue of the contract with the city to so furnish water. No contract whatever, with the defendant, other than that between the water company and the city of Birmingham, above referred to, is shown or relied upon.

The trial court sustained the demurrers to the complaint, thus holding that the complaint showed no cause of action against the defendant waterworks company. The trial court evidently followed the decision of this court in the case of Lovejoy v. Bessemer Waterworks Co., 146 Ala. 374, 41 So. 76, 6 L.R.A. (N.S.) 429, 9 Ann.Cas. 1068. The cause of action attempted to be set up in each count of the complaint in this case cannot be distinguished from that set up in the Lovejoy Case. The allegation that the defendant wantonly or intentionally failed to furnish water and water pressure cannot change the result as to stating a cause of action. If there was no legal duty owing by the defendant water company to the plaintiff to furnish water and water pressure, the failure of which is complained of, then a wanton or intentional failure to so furnish will not change the legal rights of the parties. That no such duty rested upon the water company to furnish such water pressure was expressly held and decided in the Lovejoy Case, supra, and that decision seems to be in line with the great number and weight of authority in other states, as well as of the text-writers on the subject.

The omission to act, however willful, is not an actionable wrong unless there is a legal duty to act. Wantonness, as has been said by this court, is the conscious failure by one charged with a duty to exercise due care in the discharge of that duty. At the time of the decision of the Lovejoy Case, the question was an open one in this state, and it seems to have been carefully and thoroughly considered by this court, and that case has been followed, quoted, and cited by the courts of a number of other states.

The resultant of the decision of all the courts, state and federal, upon this question, is stated in a note to the Maine case of Hone v. Presque Water Co., 104 Me. 217, 71 A. 769, 21 L.R.A. (N.S.) 1021.

We have examined many of the cases and the texts on the subject, and are of the opinion that the note in the above-mentioned case accurately shows the true resultant of these decisions, which is to the effect that the great weight of authority denies the right of a property owner to maintain an action against a water company for loss of property proximately resulting from its failure to provide sufficient water or water pressure for fire purposes, as is required by its contract with the municipality. The right of action, however, has been...