Fisher v. Greensboro Water-Supply Co.

• Citation: 38 S.E. 912,128 N.C. 375
• Parties: FISHER v. GREENSBORO WATER-SUPPLY CO.
• Decision Date: 28 May 1901
• Court: United States State Supreme Court of North Carolina

38 S.E. 912

128 N.C. 375

FISHER v. GREENSBORO WATER-SUPPLY CO.

Supreme Court of North Carolina

May 28, 1901

Appeal from superior court, Guilford county; Timberlake, Judge.

Action by B. J. Fisher against the Greensboro Water-Supply Company. Judgment ex contractu entered in favor of plaintiff, to which he excepts and appeals. Error.

Plaintiff alleged that defendant contracted to furnish the city of which he was a taxpayer with an ample supply of water for protection against fires, and was paid therefor; that defendant was negligent as to its obligations under the contract, and by virtue, also, of the obligations assumed when it undertook to supply such water, in that it failed to supply the hydrants in plaintiff's building with pressure sufficient to extinguish a fire before it had destroyed such building, to his damage. The jury found the facts as alleged and the court entered a judgment for damages as on breach of contract. Held, that plaintiff was entitled to declare in tort, and, having done so, the judgment should be so entered and not as upon breach of contract.

A. L Brooks and J. N. Staples, for appellant.

King & Kimball and Bynum & Bynum, for appellee.

COOK J.

There is but one question presented: Was the plaintiff entitled to judgment ex contractu or ex delicto? Which depends solely upon the nature of the action as brought,--whether for a breach of contract or for negligent injuries. The rule is that where the law, from a given statement of facts, raises an obligation to do a particular act, and there is a breach of that obligation, and a consequent damage, an action on the case, founded on the tort, is the proper action. Bond v. Hilton, 44 N.C. 310, 54 Am. Dec. 552; Robinson v. Threadgill, 35 N.C. 41; Solomon v Bates, 118 N.C. 315, 24 S.E. 478. The plaintiff alleges that defendant had obligated itself (among other things) to furnish to the city of Greensboro an ample supply of water, and the necessary machinery, engines, appliances, etc., for protection against fire; that be, an inhabitant and taxpayer of said city, owned the Benbow House, a four-story hotel, there situate, which was burned in June, 1899, and "that the defendant company was culpably negligent and willfully careless of its duty and obligations, both to the city of Greensboro and its inhabitants, under the said contract, and by virtue, also, of the duties, obligations, and responsibilities which it assumed when it undertook to supply water to the city of Greensboro and its inhabitants for a stipulated price, which was paid to it by the said city, and derived by said city from taxation on the inhabitants thereof, and particularly on the plaintiff, a property owner, as aforesaid, and a taxpayer in the said city of Greensboro; and by reason of the said willful, tortious, culpable, reckless, and gross negligence of the said defendant company, and by reason of its failure and omission to perform its contractual, as well as its public, obligations and duties to the said city of Greensboro and its inhabitants, and especially towards the plaintiff in this action, in that it wholly failed and carelessly and negligently refused to furnish the said hydrants in and about the said hotel, as hereinbefore set forth, with a sufficient pressure of water to extinguish the said fire before the same had greatly damaged and effectually destroyed and injured a greater part of the said building, and by reason of such tortious, negligent, and careless conduct on the part of the said defendant company, the plaintiff was damaged in the sum of forty thousand dollars ($40,000). (16) The plaintiff is advised, and so alleges, that the defendant company negligently failed to perform its obligations to the said city of Greensboro and its inhabitants and taxpayers, and especially towards the plaintiff in this action, by carelessly, willfully, and negligently failing to keep a sufficient quantity of water in its storage water tank in the said city of Greensboro, necessary for the purpose of extinguishing fire, together with the other uses to which it was applied. (17) The plaintiff alleges that the defendant company negligently and carelessly failed to keep its pumping engine...