A. J. Brown & Son, Inc. v. City of Grand Rapids

• Decision Date: 19 December 1933
• Docket Number: No. 117.,117.
• Parties: A. J. BROWN & SON, Inc., v. CITY OF GRAND RAPIDS et al.
• Court: Michigan Supreme Court

265 Mich. 465

251 N.W. 561

A. J. BROWN & SON, Inc.,

v.CITY OF GRAND RAPIDS et al.

No. 117.

Supreme Court of Michigan.

Dec. 19, 1933.

Appeal from Superior Court of Grand Rapids; Thaddeus B. Taylor, Judge.

Action by A. J. Brown & Son, Incorporated, against the City of Grand Rapids and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

Argued before the Entire Bench.

WEADOCK and SHARPE, JJ., dissenting.

Norris, McPherson, Harrington & Waer, of Grand Rapids (Annis & Heaney, of Grand Rapids, of counsel), for appellant.

Robert S. Tubbs, City Atty., of Grand Rapids, for appellee city.

BUTZEL, Justice.

The judgment for defendants should be affirmed.

The testimony shows that in the year 1894 a new laterla water main on Ionia avenue, in the city of Grand Rapids, Mich., was connected with a large main owned and operated by the Grand Rapids Hydraulic Company, with the object of supplying water to the building thereafter acquired by defendant George L. Young Company and occupied by defendant Bishop Furniture Company. The evidence revealed that no change whatsoever has ever been made in the pipes or elbows of the lateral main since their installation. The city of Grand Rapids acquired the plant and equipment of the Grand Rapids Hydraulic Company in 1920 and continued to supply water to residents of the city for compensation.

In the early morning hours of July 3, 1927, a break occurred in an elbow of the lateral main, situated about 4 1/2 feet below the surface of the ground and about a foot from a point immediately below the west rail of the street car tracks laid in the street. As a result of the break, a large flow of water passed through the basement of defendant George L. Young Company and eventually lodged in the basement of plaintiff's premises, causing serious damage to a large stock of seeds stored there.

The water was shut off almost immediately after the break was discovered. Shortly thereafter, when repairs were made, the lateral was found to be in good condition and, with the exception of a short piece removed in order to make a new connection at the point of breaking, the entire section remained in use for four years, after which time new developments made its replacement advisable. When the repairs were made, a part of the broken elbow was taken to the city hall and carefully inspected by several who later appeared as witnesses. Since that time, it appears to have been lost and was not produced at the hearing. The other part of the broken elbow was lost when the break was uncovered. The elbow had been split by a lengthwise fracture which, except as to an extremely small, dark spot on the under side, appeared to be fresh. The record discloses that this spot could not have been discovered unless excavations had been made under the elbow and that, even under such a procedure, a very minute examination would have been required to reveal the condition.

No satisfactory explanation has been given as to the exact cause of the break. Defendant introduced testimony in an effort to prove that it was the result of electrolysis, but the record leaves us very much in doubt. The testimony of witnesses with regard to the appearance of the section of the elbow taken to the city hall indicated that the break might have been caused in some other manner. It is possible that it might have been brought about by the constant vibration of street cars passing over the tracks almost immediately above the elbow, by acids or other chemicals in the ground, or by some sand bubbles or other defect in the pipe that did not cause damage until almost thirty-five years after the lateral was first laid. There is insufficient testimony in the record, however, to justify a holding that any one or more of these possibilities were actualities.

It was testified that pipes of this character might last almost a century. Electrolysis in a pipe is usually shown by a pitted condition, which was not in evidence on the fragment of the elbow found after the break. The effect of electrolysis on a pipe is directly opposite to that of electroplating. It removes the metal from cast iron, leaving only carbon. In order to ascertain whether a pipe has been subjected to electrolysis, a knife or other sharp instrument is frequently used to cut into the pipe. If there is no resistance, it is a proper conclusion that electrolysis has eaten away the iron, leaving only the soft carbon.

There was no showing that the pipe was subject to any unusual water pressure, other than the introduction of a city official's statement to the effect that there had been some increase in pressure, the exact extent of which was not described, after the city took over the Hydraulic Company's plant. One witness stated that new installations are tested by a severe water pressure of 160 pounds. There is no showing on the record as to the practicability of such a procedure when applied to an entire water system and its advisability was severely criticized by appellees in the briefs.

Notwithstanding some confusion on the subject in the earlier cases, it has been definitely determined by this court that the doctrine of res ipsa loquitur does not prevail in this state. Camp v. Spring, 241 Mich. 700, 217 N. W. 917. The mere occurrence of an accident ordinarily raises no presumption of negligence; the burden of proof remains with plaintiff and does not shift. Weaver v. Motor Transit Management Co., 252 Mich. 64, 233 N. W. 178;Kerr v. City of Detroit, 255 Mich. 446, 238 N. W. 190.

Plaintiff has failed to prove that defendant city of Grand Rapids was in any way negligent in omitting to perform a duty. Neither has it fixed responsibility upon defendants George L. Young & Co., the owner of the property, and Bishop Furniture Company, its lessee. With the pipes already in service for almost thirty-five years, there can be no claim that they were improperly installed, nor is there any claim that improper materials were used.

Plaintiff falls back upon the contention that there were no proper tests or inspections conducted by the city, but suggests no reasonable tests or methods of inspection. The testimony reveals with certainty that there were no similar breaks in the near vicinity. If it was incumbent upon the city to make such tests and inspections as are demanded by plaintiff, at places where there had been no previous trouble, it would mean that the city would constantly be obliged to dig up its streets and inspect its water mains. The further question arises as to how frequently, in that eventuality, such inspection should be made. If the city should apply the kinfe test to all of its mains after they were exposed by excavations, and a leak should occur shortly thereafter as a result of electrolysis, would the city be responsible for improper inspection? The expense of maintaining a system under those circumstances would be such as to make the cost of supplying water almost prohibitive.

While there are cases in some jurisdictions which hold the city liable for breaks in water mains without making it incumbent upon the plaintiff to show the cause thereof, an examination discloses that most of them have been decided in jurisdictions in which the doctrine of res ipsa loquitur prevails. We believe that the correct rule is stated in Simon v. City of New York, 82 Misc. 454, 143 N. Y. S. 1097, 1098 (quoted in McQuillin, Municipal Corporations [2d Ed.] § 2852): ‘In all the sewer or water main cases cited by the plaintiff, in which the city was held liable, there was either evidence of actual neglect in the construction or...