Kenton Water Co. v. Glenn

• Decision Date: 11 January 1911
• Citation: 141 Ky. 529,133 S.W. 573
• Parties: KENTON WATER CO. v. GLENN et al.
• Court: Kentucky Court of Appeals

133 S.W. 573

141 Ky. 529

KENTON WATER CO. v. GLENN et al.

Court of Appeals of Kentucky.

January 11, 1911

Appeal from Circuit Court, Kenton County, Criminal, Common Law, and Equity Division.

Action by D. A. Glenn and others against the Kenton Water Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

S.D Rouse, for appellant.

Myers &amp Howard, for appellees.

MILLER J.

The residence of the plaintiff, Glenn, with about one-half of its contents, situated in Latonia, was destroyed by fire on November 26, 1905. The plaintiff laid his loss for the house at $6,500, and the furniture and furnishings at $1,600. The house was insured for $2,500 and the furniture for $800. These amounts were paid to the plaintiff by the insurance company, leaving an alleged net loss of $4,800, for which sum he brought this suit against the Kenton Water Company for damages for its failure to supply a sufficient pressure of water to enable the plaintiff to extinguish the fire, and recovered $1,000.

The Kenton Water Company supplied water to the board of trustees of the town of Latonia under a written contract, by which the water company agreed: "(1) To furnish for consumption in private dwellings, residences and storerooms and the premises thereof, water at a minimum annual charge. *** (3) To furnish water to the town of Latonia for fire protection only; fire plugs at an annual charge or rental, as follows: *** All fire plugs to be installed and kept in repair at the cost of the Kenton Water Company. Fire plugs shall be installed at such places along the water mains as the board of trustees may direct. *** (6) The undersigned (Kenton Water Company) shall be authorized to supply water to private fire plugs and other pipes and apparatus by private individuals, companies, or corporations for their own fire protection and to charge such sums therefor as may be agreed upon. (7) All service pipes connections, etc., shall be made at the expense of the owner of the property or of the consumer, and shall be paid for in advance, the same not to exceed $25.00, extending from the main to the curb line of the street." The other portions of the contract are immaterial to this controversy.

It may be considered as an established principle of the law of contracts in this state that where a water company has contracted with a city to furnish a supply of water sufficient for the protection of the inhabitants and property of the city against fire, the company must answer in damages to the citizen for loss by fire resulting from its failure or refusal to perform its contract; and that an inhabitant of the city who has suffered loss by fire by reason of the water company's breach of its contract with the city may have an action against the water company without joining the city as a party defendant. This class of cases comes within the rule which permits a party for whose benefit a contract is made to sue thereon in his own name, though the engagement be not directly to or with him. Paducah Lumber Company v. Paducah Water Supply Co., 89 Ky. 340, 12 S.W. 554, 13 S.W. 249, 11 Ky. Law Rep. 738, 7 L. R. A. 77, 25 Am. St. Rep. 536; Owensboro Water Co. v. Duncan's Adm'x, 32 S.W. 478, 17 Ky. Law Rep. 755; Georgetown Water, Gas, Electric & Power Co. v. Neale, 137 Ky. 197, 125 S.W. 293.

The fire began between 2 and 3 o'clock on a Sunday afternoon. It first made its appearance in the roof, and smoldered for some time before the flame burst forth. Immediately upon the discovery of the fire, the occupants of the house attached a small garden hose to a water pipe which opened on the outside of the building and was connected with its waterworks. One or two of the persons present climbed upon the roof, carrying the garden hose with them, and attempted to extinguish the fire before it had made any substantial progress. The fire department responded within a reasonable time, but, by reason of some mismanagement or accident, the fire plug in the street was broken or injured to such an extent that the firemen were unable to use it. They then moved their hose to another fire plug more distant from the fire. In the meantime, the occupants of the house had failed to make any impression upon the fire with the garden hose because the water failed to reach the fire. The evidence clearly shows that while the stream ordinarily would be thrown from...