Howsmon v. Trenton Water Co.

• Decision Date: 23 December 1893
• Citation: 24 S.W. 784,119 Mo. 804
• Parties: HOWSMON v. TRENTON WATER CO.
• Court: Missouri Supreme Court

24 S.W. 784

119 Mo. 804

HOWSMON v. TRENTON WATER CO.

Supreme Court of Missouri, Division No. 1.

December 23, 1893.

WATER COMPANIES — FAILURE TO FURNISH WATER TO EXTINGUISH FIRES.

A water company which contracts with a town to furnish water adequate to extinguish all fires, and agrees to be liable for damages for injuries by fire caused by its failing so to do, cannot be sued on such contract by a citizen, though he and other citizens pay a special tax to the company under the contract.

Appeal from circuit court, Grundy county; G. D. Burgess, Judge.

Action by William Howsmon against the Trenton Water Company for the burning of plaintiff's house, caused by defendant's failure to furnish a supply of water sufficient to extinguish the fire. There was judgment for defendant on a demurrer to the complaint, and plaintiff appeals. Affirmed.

Harber & Knight and A. W. Mullins, for appellant. R. L. Yeager, for respondent.

BRACE, J.

This is an appeal from the judgment of the circuit court of Grundy county, sustaining a demurrer to the plaintiff's petition, the material allegations of which are, in substance, as follows: That the plaintiff is a resident citizen and taxpayer of the town of Trenton in said county, and the owner of a large amount of valuable property within the corporate limits of said town, subject to taxation for ordinary purposes, and to a special tax of five mills on the dollar annually for the purpose of discharging the obligations of said town to the defendant on the contract sued on herein, all of which he has regularly and promptly paid. That by a contract entered into, by ordinances, between the town of Trenton and the defendant, the said defendant (in consideration of the franchise granted it, and the privilege of collecting certain water rates from its citizens, and of the sum of $2,000 to be paid annually by the town, to be raised by an annual tax of five mills, as aforesaid, all of which the defendant has received and enjoyed) promised and agreed with said town to furnish, at all times, an adequate supply of good, clear, and wholesome water, for fire and other purposes, for public and private use, under such a pressure as to have the power to throw, at all times, six streams of water through 50 feet of 2½-inch rubber hose and 1-inch ring nozzle, 80 feet high, in the business portion of the town, and to throw at least two effective streams at any one time in any other part of the town accessible from the mains; and further agreed that, "should said water company, from lack of water supply, or any other cause except providential or unavoidable accident, fail to furnish a reasonable or adequate supply of water to extinguish any fire, then it shall be liable for all damages occasioned by such fire or neglect." That on the 24th of March, 1889, plaintiff's dwelling house in said town, with the household and kitchen furniture and wearing apparel therein contained, all of the value of $3,700, was destroyed by fire. That said house was close to the main of defendant, and situated at a place where, in the event a fire should there occur, it was the duty of defendant, under said contract, to furnish an adequate supply of water, with force and power sufficient to extinguish such fire; which the defendant, without any providential or unavoidable accident, failed to do, and by reason of such failure plaintiff's property was destroyed, to his damage in the sum of $3,700.

It is well-established law in this state, by a line of decisions extending from the year 1847 to the present date, "that a person for whose benefit an express promise is made in a valid contract between others may maintain an action upon it in his own name." Ellis v. Harrison, 104 Mo. 270, 16 S. W. 198; State v. Laclede Gaslight Co., (Mo. Sup.) 14 S. W. 974; Fitzgerald v. Barker, 70 Mo. 685; Rogers v. Gosnell, 58 Mo. 589, 51 Mo. 466; Meyer v. Lowell, 44 Mo. 328; Robbins v. Ayers, 10 Mo. 539; Bank v. Benois, 10 Mo. 521. And such is now the prevailing doctrine in America, by the great weight of authority. 3 Amer. & Eng. Enc. Law, p. 863, note 5. This doctrine, originally an exception to the rule that no claim can be sued upon contractually unless it is a contract between the parties to the suit, has become so general and far-reaching in its consequences as to have ceased to be simply an exception, but is recognized, within certain limitations, as an affirmative rule. The foregoing cases from this court are in harmony with the rule as laid down in Lawrence v. Fox, 20 N. Y. 268, that "an action lies on a promise made by the defendant upon valid consideration to a third person, although the plaintiff was not privy to the consideration. Such promise is to be deemed made to the plaintiff, if adopted by him, though he was not a party nor cognizant of it when made." Meyer v. Lowell, supra. "It is not every promise, however, made by one to another from the performance of which a benefit may ensue to a third, which gives a right of action to such third person, he being neither privy to the contract nor to the consideration. The contract must be made for his benefit as its object, and he must be the party intended to be benefited." Simson v. Brown, 68 N. Y. 355; Vrooman v. Turner, (1877,) 69 N. Y. 280; Wright v. Terry, 23 Fla. 160, 2 South. 6; Austin v. Seligman, 18 Fed. 519; Burton v. Larkin, 36 Kan. 246, 13 Pac. 398, and cases cited. In other words, "the rule is not so far extended as to give to a third person, who is only indirectly and incidentally benefited by the contract, the right to sue upon it." But "the name of the person to be benefited by the contract need not be given, if he is otherwise sufficiently described or designated. Indeed, he may be one of a class of persons, if the class is sufficiently described or designated." Burton v. Larkin, supra; Johannes v. Insurance Co., 66 Wis. 50, 27 N. W. 414. In the opinion delivered by Allen, J., in Vrooman v. Turner, supra, it was said: "Judges have differed as to the principle upon which Lawrence v. Fox and kindred cases rest, but, in every case in which an action has been sustained, there has been a debt or duty owing by the promisor to the party claiming to sue upon the promise. Whether the decisions rest upon the doctrine of agency, the promisee being regarded as the agent of the third party, who, by bringing his action, adopts his acts, or upon the doctrine of a trust, the promisor being regarded as having secured money or other thing for the third party, is not material. In either case there must be a legal right, founded upon some obligation of the promisee, in the third party, to adopt and claim the promise as made for his benefit." An examination of very many cases decided before and since it was so held in that case satisfies us that the rule has been confined to such cases in this state, as well as elsewhere, and upon that principle when this case was before the Kansas city court of appeals in an action by another party. Phoenix Ins. Co. v. Trenton Water Co., 42 Mo. App. 118. It was, in effect, held that the plaintiff had no cause of action against the water company, because the town of Trenton was under no obligation to the plaintiff to furnish an adequate supply of water and power to extinguish the fire by which the premises were consumed; and in support of its position the following additional cases were cited: Davis v. Waterworks Co., 54 Iowa, 59, 6 N. W. 126; Nickerson v. Hydraulic Co., 46 Conn. 24; Ferris v. Water Co., 16 Nev. 44; Fowler v. Waterworks Co., 83 Ga. 219, 9 S. E. 673; and Atkinson v. Waterworks Co., 2 Exch. Div. 441. The last of these cases is not in point, since the action in that case was for the breach of a public statutory duty, and the court held that the action would not lie, because the statute gave no right of action to the plaintiff. The cause of action in each of the other cases was for a breach of duty which it was alleged the defendants owed the plaintiff under a contract with the city, to which the plaintiff was not a party, whereby they agreed to furnish an adequate supply of water and power to extinguish fires in the town or city; to which it was replied in the Connecticut case, (decided in 1878:) "Whatever benefit the plaintiffs could have derived from the water would have come from the city, through its fire department. The most that can be said is that the defendants were under obligation to the city to supply the hydrants with water. The city owed a public duty to plaintiffs to extinguish their fire. The hydrants were not supplied with water, and so the city was unable to perform its duty. We think it is clear there was no contract relation between the defendants and the plaintiffs, and consequently no duty which can be the basis of a legal claim." In the Iowa case (decided in 1880) it was replied: "The city, in the...