Gorrell v. Greensboro Watersupply Co

• Decision Date: 04 April 1899
• Citation: 32 S.E. 720,124 N.C. 328
• Court: North Carolina Supreme Court
• Parties: GORRELL. v. GREENSBORO WATERSUPPLY CO.

32 S.E. 720

(124 N.C. 328)

GORRELL.

v.GREENSBORO WATERSUPPLY CO.

Supreme Court of North Carolina.

April 4, 1899.

Water Companies — Breach of Contract — Actions—Parties—Proximate Cause.

1. Where a water company contracts to furnish a city and its inhabitants with an adequate supply of water for protection against fire, a taxpayer whose property is destroyed by fire through the failure of the company to supply sufficient water for its extinguishment, being a beneficiary of the contract, may, in his own name, sue the company for the damages sustained.

2. Where a water company contracts with a city to furnish water in such quantity that it may be used to extinguish fires in the city, the damage resulting to an owner from a destruction of his property by fire by failure to furnish the water is the proximate consequence of the breach.

Faircloth, C. J., and Furches, J., dissenting.

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

Action by Charlotte J. Gorrell against the Greensboro Water-Supply Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

King & Kimball, for appellant.

Boyd & Brooks, for appellee.

CLARK, J. This cause is presented upon complaint and demurrer. The complaint avers authority conferred upon the city of Greensboro by its charter to provide water supplies, either by erecting waterworks itself or by contract, and that in pursuance thereof the city contracted with the Greensboro Water Company to furnish said city "with pure and wholesome water for the use of its citizens, and of force at all times sufficient to protect the inhabitants of the city against loss by fire, " giving to said company exclusive rights of eminent domain over its streets, alleys, sidewalks, and public grounds for the purpose of laying and operating water mains, pipes, hydrants, stands, etc.; that subsequently all the rights and property of said water company passed by sale to the defendant who at the same time assumed all the duties and obligations Imposed by the aforesaid contract, and both the defendant and the city had acquiesced in the same; that by virtue of said contract it was stipulated and agreed, inter alia, that the water company should "supply the city and inhabitants with pure, good, and wholesome water, suitable for all domestic, sanitary, and fire purposes, and for individual use"; should "erect and maintain settling basins, filtering galleries, reservoirs, water towers, pump houses, and other appurtenances and attachments necessary or expedient for the proper conducting and carrying on said waterworks, so as to afford at all times the most adequate supply for all domestic uses and the greatest protection against fire." The remainder of the complaint is as follows: "(8) That it was also stipulated and agreed by and under said contract that the said water company should use only first-class machinery, pipes, hydrants, valves, pumps, etc., in connection with said waterworks, and that the said works should be complete in all its details with a capacity to furnish one and a half million gallons of water every twenty-four hours against a pressure of two hundred feet head; and should erect a storage water tank whose top water level should be one hundred feet above the surface of the ground at the center of the public square and to be of a capacity of 100, 000 gallons of water, and that the same shall be filled by the said water company to its top every day an hour before sundown. And for the extinguishment of fire In said city the company shall erect a pump house, and put therein a pumping engine, which shall be kept ready at all times to supply the needed fire pressure. (9) That it was further stipulated and agreed by and under said contract that the said water company should erect and put in seventy-five hydrants at such places as the city might designate, and for the rents of which said city of Greensboro was to pay them annually $2,875. And in pursuance of such agreement and compliance therewith on the part of the city, the water company did erect, and their successor, the Greensboro Water-Supply Company, had in possession and use at the times hereinafter mentioned, two hydrants, one 100 and the other about 200 feet distant from plaintiff's store houses which were destroyed by fire on the date hereinafter mentioned. (10) That by the terms of said contract it was further stipulated and agreed that the said water company should keep a pressure of water for fire purposes sufficient to throw six streams of water from six hydrants, to a vertical height of 100 feet in still air, each stream being taken from one hydrant and with 100 feet of hose and a 1-inch ring nozzle; and the said company shall constantly, day and night, except from unavoidable accidents, keep all the said hydrants supplied with water for fire service, and shall keep them in good order for said service. (11) That said contract was made with the said Greensboro Water Companyand extended to and acquiesced in by their successor, the defendant Greensboro Water-Supply Company, for the use and benefit of all its property owners and inhabitants, among which was the plaintiff, who was a property owner in said city at the times hereinafter referred to and for several years prior thereto, in common with that of other citizens of said city, which said property was taxed at its full value to raise money with which to pay said hydrant rents. (12) That on the

night of the —day of June, 1897, a fire

broke out in a building some thirty feet distant from plaintiff's store rooms on the south side of South Elm street in said city. That the fire alarm was at once turned on, and in less than ten minutes thereafter the Greensboro Fire Company arrived at said fire with their hose, fire engine, and other appurtenances necessary for the ready extinguishment of said fire. That the said tire company attached its hose, which were in every respect adequate and sufficient for the demands of the occasion, as plaintiff is advised and believed, to the two hydrants above mentioned, one 100 feet from said store rooms and the other about 200 feet distant, each of which said hydrants were sufficiently near to said store and lot to have afforded water adequate for the ready extinguishment of said fire, if the proper pressure had been on same. That, notwithstanding the promptness of the fire company in reaching said fire, and the perfect sufficiency of its equipments to convey the water to same, the defendant, as plaintiff is advised and believes, persistently, carelessly, and negligently refused to furnish said hydrants above described and referred to with a sufficient pressure of water to extinguish said fire, and by reason of such tortious and negligent conduct on the part of the defendant the said fire spread from the building in which it originated, and ignited the store room of the plaintiff. (13) That after the fire had spread to and caught in flames the building of the plaintiff, the said fire company, as plaintiff is advised and believes, was still present with its hose, ladders, buckets, engine, etc., ready to use its every effort to extinguish same; and while the said fire company had its hose attached to said hydrants sufficiently near, with the proper pressure, to have quickly extinguished same, and saved plaintiff's property from burning, the defendant persistently refused, neglected, and omitted to have the fire pressure agreed to and required by its contract, and only furnished pressure sufficient to throw a stream 10 feet from end of said regulation hose, by carelessly, negligently, and wrongfully falling to keep any water in its water tank, or even it's hydrants and pipes full, and not having its pumping engine at work; by reason of which negligent, wrongful, and tortious conduct on the part of the defendant the plaintiff's property was totally destroyed by fire, and by reason of such loss she has been damaged in the sum of $5,000. (14) That the said tire origi nated in an adjacent building to plaintiff's, and that the destruction of her property by same was not occasioned by any...