Fitch v. Seymour Water Co.

• Decision Date: 20 June 1894
• Citation: 37 N.E. 982,139 Ind. 214
• Parties: FITCH v. SEYMOUR WATER CO.
• Court: Indiana Supreme Court

139 Ind. 214

37 N.E. 982

FITCH

v.SEYMOUR WATER CO.¹

Supreme Court of Indiana.

June 20, 1894.

Appeal from circuit court, Jackson county; S. B. Voyles, Judge.

Action by Asa W. Fitch against the Seymour Water Company. Judgment for defendant, and plaintiff appeals. Affirmed.

D. J. Schuyler, Wm. K. Marshall, A. N. Munden, Applewhite & Applewhite, and Walter Olds, for appellant. Merrill Moores and O. H. Montgomery, for appellee.

HOWARD, J.

The appellant brought this action against the Seymour Water Company, charging that he was a citizen and taxpayer of the city of Seymour. That the defendant company was supplying the city with water under a contract which provided that the company “shall constantly, day and night, except in cases of unavoidable accident, keep all of the city hydrants supplied with water, and, upon receiving a fire alarm, shall at once furnish sufficient pressure for fire service, not, however, to exceed one hundred pounds to the square inch, and shall keep the fire hydrants in good working order and efficiency for fire service;” and was paid at the rate of $4,000 per year for the use of 100 fire hydrants by the city of Seymour. That the appellant, Fitch, was the owner of a building used by him for the manufacture of chewing gum and other articles, and on November 23, 1891, this building was destroyed by fire, with its contents, belonging to Fitch, of the value of more than $20,000. That the city of Seymour had in all things fulfilled its contract with the Seymour Water Company as to the payment of rent and other requirements, and that “defendant had machinery, water mains, pipes, and hydrants of sufficient capacity and power to have furnished water in large quantities, sufficient to have extinguished said fire, before plaintiff's property could have been damaged by said fire more than $500; and that defendant owed the duty to plaintiff to furnish water for the extinguishment of said fire as soon as it could possibly be extinguished; and it could have been extinguished within eight minutes after its commencement, and before plaintiff's property had been damaged by said fire more than $500, as aforesaid, if defendant had furnished the pressure of water it could and should have furnished.” That the city of Seymour had two fire companies, organized in the state of Indiana, and under the ordinances of the city of Seymour. That it was the duty of said fire companies, as soon as the fire alarm was given, to go immediately, and attach hose to a sufficient number of hydrants, and by means of said hose throw the water on said fire. That the alarm of fire was given when said fire was in its incipiency, and before much damage had been done to plaintiff's property. Said fire companies went immediately, and attached their hose to four different hydrants, which was a sufficient number, and began to throw water on said fire within five minutes after said alarm was given, and could and would have extinguished said fire before plaintiff's property aforesaid had been damaged more than $500 if they could have had an ordinary amount of pressure that they usually had from such waterworks, and which said waterworks and the machinery had the capacity and power to furnish, and which amount it was the duty of defendant to furnish; but said defendant negligently, carelessly, and wrongfully failed to furnish the usual amount of pressure, and did not furnish one-third the amount said works had the capacity and power to furnish; and by reason of said failure, said companies could not, and did not, throw water on said fire in such quantities, and with such force, as to check said fire. The defendant demurred to the complaint, and its demurrer was sustained, and, on plaintiff's refusal to amend, judgment was rendered in favor of defendant, and the plaintiff appealed to this court.

The appellant contends that, under the facts pleaded and the ordinance, “the relation between the city of Seymour and the defendant was not in the nature of a contract, but was a franchise granted to the defendant by the common council under the powers conferred upon it by the constitution and the laws of the state, and, therefore, has all the binding force of a law, and is, in effect, a statutory enactment;” and that “the obligation of the defendant, therefore, under this ordinance, to the city of Seymour and its inhabitants, was not one of contract, but was an obligation created by law; and the duty of the defendant to the city and the inhabitants, including the plaintiff, was a public duty, and one for any breach of which resulting in damage either to the city or its inhabitants (to the plaintiff in the case) the defendant would be liable for such damage.” The appellee holds that “the question is whether water companies, operating under contracts with cities, by which they agree to furnish sufficient water for fire protection, owe such a duty to inhabitants of the cities as to give the inhabitants a right of action against the water company for fire losses occurring through an insufficient supply of water;” and concludes that “the breach of a contract by a water company to furnish water to a municipality for the extinguishment of fires gives the citizen whose property is destroyed by fire no right of action against the water company.” The cases cited by appellant to show a right of action in favor of an inhabitant of a municipality against an...