Fowler v. Athens Water-works Co

• Decision Date: 01 May 1889
• Citation: 9 S.E. 673,83 Ga. 219
• Parties: Fowler v. Athens Water-Works Co.
• Court: Georgia Supreme Court

9 S.E. 673

(83 Ga. 219)

Fowler

v.Athens Water-Works Co.

Supreme Court of Georgia.

May 1, 1889.

Municipal Corporations—Contracts—Privity.

Against a water company which is under a contract obligation with the municipal government (but no legal duty otherwise) to furnish a supply of water for use by the municipality in extinguishing fires, a citizen and tax-payer, whose property has been consumed by reason of a breach of such contract obligation, has no right of action, there being no privity of contract between the citizen and the water company, and mere breach (by omission only) of a contract entered into with the public not being a tort, direct or indirect, to the private property of an individual.

(Syllabus by the Court.)

Error from city court, Clarke county; Cobb, Judge.

T. W. Mucker and S. H. Hardeman, for plaintiff in error. Lumpkin & Burnett, for defendant in error.

Bleckley, C. J. Fowler brought action against the Athens City Water-Works Company, making the following allegations in his petition: In August, 1882, the mayor and council of the city of Athens contracted with one Robinson, in which contract Robinson undertook that he would furnish at all times, for a consideration mentioned in the contract, all the water necessary for fire purposes; that he would establish fire-hydrants to the number of 55, and would guaranty at all times a sufficient pressure to throw from any of these hydrants, through a 1-inch nozzle and 50 feet of 2 1/2-inch hose, 5 streams of water to the height of 65 feet; that Robinson, for a valuable consideration, in 1882 transferred this contract to the defendant; that the defendant is paid by a tax levied on the property of the citizens of Athens; that the petitioner, since 1882, has been a resident and tax-payer of Athens, for many years owning a certain house and lot mentioned; that the defendant ran its mains along the street by his house, and established near his house two fire-hydrants; that in July, 1887, some of the outhouses on the lot caught on fire without his fault; the fire extended to the main dwelling, and all were consumed; that the alarm of fire was promptly responded to, and the fire companies were on hand at a time when it could have been easily controlled, but there was so little pressure that the water would not go 10 feet beyond the nozzle, and was of no use in putting out the fire; that, if proper pressure had been put on, the fire could easily have been extinguished and the property saved. Damages were laid at $1,500. At the trial a contract corresponding with that described in the declaration was put in evidence. By it the city agreed to pay to Robinson, his successor or assigns, for 30 years from the completion of the water-works, as a rental for the use of the hydrants and for the supply of water for the purpose mentioned in the agreement, the sum of $3,000 annually. It was proved that the defendant had succeeded to the position of Robinson in the contract, and bad received from the city rents accordingly, undertaking to carry out the terms of the contract. The occurrence of the fire, the...