Holloway v. Macon Gaslight & Water Co.

• Decision Date: 14 April 1909
• Parties: HOLLOWAY v. MACON GASLIGHT & WATER CO.
• Court: Georgia Supreme Court

64 S.E. 330

132 Ga. 387

HOLLOWAY v. MACON GASLIGHT & WATER CO.

Supreme Court of Georgia

April 14, 1909

Syllabus by the Court.

A waterworks company, operating under a franchise which gives to it the right to use the streets, etc., of a city for the purpose of laying its mains, etc., and carrying on its business, and which enters into a contract with the municipality to supply it, in its corporate capacity, with a sufficient supply of water from the city hydrants to extinguish fires, and to furnish private consumers, at fixed tolls, with water for domestic and manufacturing purposes, is under no public duty to a resident of the city to furnish the municipality with water to protect his property from loss by fire, and consequently cannot be held liable to him, in an action of tort, for fire loss sustained by him by reason of its failure to supply the city with water with which to extinguish the fire which consumed his property.

[Ed Note.-For other cases, see Waters and Water Courses, Cent Dig. § 301; Dec. Dig. § 206. ^[*]]

Case certified from Court of Appeals.

Action by J. D. Holloway against the Macon Gaslight & Water Company. Judgment for defendant, and plaintiff brings error to the Court of Appeals, which certified the case to the Supreme Court. Judgment rendered.

The question in this case was certified to this court by order of the Court of Appeals, which is as follows:

"J D. Holloway v. Macon Gaslight & Water Company.

"In the foregoing case, pending in the Court of Appeals, said court desires the instruction and decision of the Supreme Court as to the following question of law necessary to the proper determination thereof, to wit: Does a petition set out a good cause of action which alleges: That the defendant is the Macon Gaslight & Water Company, which is a public service corporation engaged in furnishing water to the city of Macon and to the inhabitants of that city for toll, and which has a monopoly of such business in said city. That the city itself and the inhabitants thereof are now and for the past four years have been utterly and entirely dependent on the defendant for water supply. That on November 26, 1891, the defendant entered into a contract with the city of Macon respecting the furnishing of water to said city for a period of 20 years, which has not expired. (A copy of said contract, omitting certain immaterial parts, is hereto attached as a part hereof and marked 'Exhibit A.') That by the terms of said contract the defendant agreed to furnish water to said city for its benefit and for the benefit of its inhabitants for fire protection and for other purposes, it having therein been agreed by the defendant as follows: 'The party of the second part [the defendant herein mentioned] agrees to supply the party of the first part [the mayor and council of the city of Macon] with water in sufficient quantities and at all times for fire protection.' That the city of Macon has continuously paid the defendant, from revenues derived from the taxation of its citizens, for the services so contracted to be performed by the defendant. That on November 19, 1907, petitioner was a citizen and taxpayer of the city of Macon, and owned and possessed a certain described house and contents, all of the value of $2,100, in said city, located in the area which defendant undertook to supply with water under said contract, and on said date a neighboring dwelling house caught fire from causes unknown, but through no fault of petitioner. That said fire spread and was communicated to petitioner's house and the contents thereof, so that they were burned and destroyed, to his loss in the sum of $2,100, despite petitioner's best efforts to prevent the spread of said fire. That before the fire was communicated to petitioner's house the fire alarm had been given, and the city fire department had responded and reached the scene of the fire. After they reached the scene of the fire they connected the hose with the water plug of the defendant, with the view of extinguishing the fire and preventing damage to petitioner's property, which could easily have been accomplished if the defendant had maintained at that time in its supply pipes the pressure it had agreed at all times to maintain. That at said time there was no appreciable pressure of water in defendant's pipes, and not sufficient supply of water to enable the fire department to employ a steamer to extinguish or confine the fire. That despite the presence, willingness, and efficiency of the fire department, the house and contents burned. The defendant knew that neither the petitioner nor the fire department had any other supply of water than that the defendant had agreed to furnish. That the petitioner was without fault in the matter. That during all the times mentioned the defendant was enjoying valuable franchises in its corporate existence and business, notably the occupancy of the public streets with its water mains, on condition that it should perform the services undertaken under the contract. That the said contract was entered into by the defendant with the city of Macon by virtue of an act of the General Assembly approved September 29, 1891, amending the charter of the city of Macon, and said contract was designed for the service and protection of the taxpayers of the city of Macon, as well as of the city itself. That by reason of said act of the General Assembly and of said contract defendant was obliged to perform a public duty and an express statutory duty toward the inhabitants, property owners, and taxpayers of Macon, and this duty the defendant did not perform, as averred above, to the special hurt, injury, and damage of petitioner. That defendant's negligence and breach of duty to petitioner consisted in its failure to have in any of the plugs near petitioner's said property an adequate supply or pressure of water for fire protection, and in failing to have the supply and pressure called for by said contract. That there was not at said plugs, and in the mains leading to said plugs, sufficient water to cause a flow at the plugs, and defendant did not have at its plant a sufficient head of steam to give a flow of water. It is therefore ordered that a copy hereof, together with a transcript of the record, be certified to the Supreme Court."

Exhibit A, being the contract between the city of Macon and the Macon Gaslight & Water Company, is as follows:

"State of Georgia, County of Bibb.

"This indenture, made and entered into this 25th day of November, A. D. 1891, by and between the mayor and council of the city of Macon, Ga., party of the first part, and Macon Gaslight & Water Company, a corporation duly incorporated under the laws of the state of Georgia, party of the second part, witnesseth: That for and in consideration of the agreements and stipulations hereinafter set forth, and for certain sums of money to be paid as hereinafter provided, and by the authority conferred upon the said city of Macon by an act of the General Assembly which became a law on the 29th day of November, 1891, the following mutual agreements are entered into:

"Section 1. The party of the second part agrees to furnish the party of the first part with water in sufficient quantities and at all times for fire protection, sprinkling streets, flushing sewers, and the various other purposes in the city offices, police barracks, market, and engine houses, and to supply the citizens of Macon for domestic and manufacturing purposes, during the continuance of this contract, at prices not to exceed the following rates: To the city in its corporate capacity, 200 fire hydrants similar to those already in use, at the rate of $40 per hydrant per annum. For each additional hydrant $37.50 per annum until the number rented by the city shall reach 300, when the price for all shall be reduced to $37.50 per hydrant per annum. *** The citizens for domestic or mechanical purposes shall be charged not more than the following rates: Private dwellings for domestic purposes only, through a single opening of one-half inch diameter, per annum, $6. ***

"Sec. 2. It is mutually agreed that the said party of the first part shall pay for such water so supplied only as it is received, equal quarterly payments in the months of January, April, July, and October of each and every year, and that no indebtedness is incurred by said city of Macon by this contract, other than that which may arise from failure on the part of the said mayor and council to comply with their contract. *** And for any failure on the part of the party of the second part to furnish the water for the purposes herein specified it shall forfeit the rentals for double the time during which said failure have occurred: provided the temporary failure of supply in a portion only of the city, caused by breaks, repairs, or extensions, shall not be considered a failure as above, nor for failure caused by the act of Providence.

"Sec. 3. The party of the second part agrees to furnish water as clear and as pure as can be obtained in sufficient quantity in practicable reach of the city; and, if any part or all of such supply is taken from the Ocmulgee river, it shall be taken from a point well above the sewerage pollution, and shall be thoroughly filtered.

"Sec. 4. It is hereby agreed by the parties hereto that, at any time during the continuance of this contract, the mayor and council of the city of Macon shall have the right to purchase the system of waterworks used in supplying the city, together with all rights, franchises, and good will, at a price to be agreed on at the time of sale. ***

"Sec. 5. Since the present works of the party of the second part have not the capacity to supply more than the present demand, the said party of the second

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