Josey v. Beaumont Waterworks Co.

• Decision Date: 14 January 1916
• Docket Number: (No. 36.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 183 S.W. 26
• Parties: JOSEY et al. v. BEAUMONT WATERWORKS CO.
• Court: Texas Court of Appeals

183 S.W. 26

JOSEY et al. v. BEAUMONT WATERWORKS CO.

(No. 36.)^*

Court of Civil Appeals of Texas. Beaumont.

January 14, 1916.

Rehearing Denied February 10, 1916.

Appeal from District Court, Jefferson County; W. H. Davidson, Judge.

Suit by J. E. Josey and others against the Beaumont Waterworks Company. From a judgment for the defendant, plaintiffs appeal. Affirmed.

This suit was instituted by the plaintiffs (appellants) against the defendant (appellee) to recover the value of their buildings and other property located in the city of Beaumont, which were destroyed by fire on September 7, 1913, which plaintiffs alleged were of the reasonable value of $77,032.18. After the evidence was all in, the court instructed the jury to find for the defendant, and the jury returned a verdict for the defendant, upon which the court rendered judgment for the defendant. Plaintiffs duly objected in writing to the court's charge before it was given to the jury, and requested that the cause be submitted to the jury, which objections and request were overruled, and refused by the court, to which the plaintiffs took a bill of exceptions. Plaintiffs in due time filed a motion for new trial, which motion was by the court overruled, and plaintiffs excepted and gave notice of appeal, and in due time filed their appeal bond and perfected their appeal to this court.

By their third amended original petition filed on the 5th day of September, 1914, upon which petition the case was tried, the plaintiffs alleged that on the 7th day of September, 1913, they were engaged in the retail and wholesale feed business in Beaumont, Tex., and had and owned certain buildings of the value of $10,686.89; that plaintiffs had in their business machinery, mills, etc., of the reasonable value of $21,070.30; office furniture of the value of $610, and goods, wares, and merchandise on hand of the value of $44,665. They further alleged that they owned said property in 1910, and on or about the 15th day of July of that year they entered into a contract with defendant, under and by virtue of which they would furnish the pipe and build a three-inch line from defendant's water main to their property, and defendant would connect said line with its water main and furnish plaintiffs water for fire protection until further notice. Plaintiffs further alleged that if they were mistaken in the date said contract was entered into, then they say that for two years prior to January 13, 1912, defendant furnished them water for fire protection, and that on said date they paid defendant $72 for services which had been furnished them through their line to their buildings for private fire protection, and then entered into an agreement with defendant, by virtue of which they would pay $9 per quarter, or $3 per month, and defendant would furnish them water in their line for said private fire protection until they were notified by defendant that said services would be discontinued; that said service was to be paid for either monthly or quarterly in advance or at the end of the period for which the service was rendered, or at such time and in such manner as defendant might render its bill to plaintiffs; that water should be furnished so as to protect plaintiffs' property against loss by fire, water being furnished through said private line, and permitted to remain therein and not cut off without notice to plaintiffs. They further alleged that if they were mistaken in said express contract, then there was an implied contract that water should be furnished in plaintiffs' private pipe line until such time as plaintiffs were notified by defendant that such contract would be discontinued, which contract arose by virtue of the dealings between plaintiffs and defendant, in that plaintiffs, with the knowledge and consent of defendant, built the private line, so as to secure water from defendant's main for private fire protection to their buildings; that defendant connected the same with its water main, and for four years prior to the loss of plaintiffs' property, permitted water to remain in said private fire line for the purpose of furnishing water to protect plaintiffs' property against loss by fire, rendering bill for such service at the rate of $3 per month, which bills were rendered at irregular times; that plaintiffs had paid for such service at the time of said fire; that at the time defendant disconnected or cut off said water it had money on hand sufficient for said purpose, and that by virtue of dealings between said parties, it became the implied understanding that said water would remain until plaintiffs were notified that the same was to be discontinued. Plaintiffs further allege that whether or not there was an express or implied contract, it was the duty of defendant to notify plaintiffs if it cut off the water from said private fire line; that it was its custom to so notify users of its water of any bad condition of the pipe or any leaks or breaks therein, and that plaintiffs knew of said custom, and relied thereon in their dealings with defendant, and said custom became a part of the contract between plaintiffs and defendant; that plaintiffs fully complied with their part of said contract with defendant, but defendant, on or about the 7th day of December, 1913, without notice to plaintiffs, cut off plaintiffs' private fire line, and excluded water therefrom, and on September 7, 1913, a fire occurred which destroyed all of plaintiffs' property, of the value alleged in their petition; that defendant failed to notify plaintiffs that water had been cut off from the private fire line, which it was its duty so to do, and the failure to so notify plaintiffs was the direct and proximate cause of the loss sustained by plaintiffs; that if there had been water in said line at the time said fire originated, the fire could have been extinguished, and said property saved; that plaintiffs did not know that the water had been discontinued from their private fire line until after said fire had been discovered, and they attempted to extinguish the same, and discovered for the first time that the water had been cut off from their buildings, and thereby, they had no means of extinguishing the same, causing the loss of their entire property, which would not have resulted but for the breach on the part of defendant of its contract with the plaintiffs to maintain said water in the pipe line of plaintiffs until they had been notified that it had been discontinued.

The defendant, after denying the allegations made by plaintiffs, alleged that it was its custom to furnish water only upon a written contract, and that if any contractual relation existed between plaintiffs and defendant, same rested upon said written contract, a copy of which is attached to defendant's answer. Defendant denied that it was its custom to notify owners of pipe lines of any bad condition of their pipe, but it admitted that it usually did so as a matter of accommodation, and in cases where it believed that the owner did not know of such defect, and that such notification was not given as a legal duty, but simply as one of ordinary courtesy. Defendant further alleged that under the terms of its franchise with the city of Beaumont, it was required to keep a certain amount of pressure in its pipes, and that no other service should be allowed to interfere therewith, and that it was the duty of plaintiffs to keep their private pipe line and equipment in good order, and that plaintiffs did not do so, and at the time of the fire said line was burst and open, and incapable of use, and the fire chief of the city of Beaumont required that water be cut off from said pipe line, in order to keep it from interfering with water pressure in the city hydrants. Defendant further alleged that at the time of the fire which destroyed plaintiffs' premises and contents, same were insured in various insurance companies set out in defendant's answer; that since said fire, plaintiffs had settled with said insurance companies, and each had paid plaintiffs the amount of insurance called for in said policies, and each policy contained a provision that the company should be subrogated to the extent of any payment made to or rights of recovery by the insured for loss resulting, and such rights should be assigned to the company by the insured on receiving such payment; that the insurance companies were now owners of the plaintiffs' cause of action, and by virtue thereof plaintiffs are not entitled to recover said amount.

Plaintiffs filed their supplemental petition, in which they denied the facts alleged by defendant in its answer, and affirmatively alleged that if their pipe was burst and open at the time of the fire, it was without their fault, and they were not advised of such condition, and if such condition existed, it was known to defendant, and not known to plaintiffs, and defendant concealed from plaintiffs the fact that said pipe line was out of order, and disconnected the water therefrom, and withheld said knowledge from plaintiffs, and the plaintiffs did not know that said line was broken, or that water had been discontinued therefrom. Plaintiffs further allege that after the filing of this suit they had settled with various insurance companies, but that plaintiffs retained the right to prosecute the suit, and that each company waived the right of subrogation.

It is contended by the appellees that they were relieved of the performance of the contract with plaintiffs, by the plaintiffs rendering the contract incapable of performance by their failure to provide a pipe line to convey the water to plaintiffs' buildings, and, that the contract being rendered impossible of performance by plaintiffs, said failure absolved the defendant from any further obligation.

Greer, Nall & Bowers, of Beaumont, for appellants. Smith, Crawford & Sonfield, of Beaumont, and L. A. Carlton, of Houston, for appellee.

BROOKE, J. (after stating the facts as...