Lovejoy v. Bessemer Waterworks Co.

• Decision Date: 11 May 1906
• Citation: 41 So. 76,146 Ala. 374
• Parties: LOVEJOY v. BESSEMER WATERWORKS CO.
• Court: Alabama Supreme Court

41 So. 76

146 Ala. 374

LOVEJOY v. BESSEMER WATERWORKS CO.

Supreme Court of Alabama

May 11, 1906

Appeal from City Court of Bessemer; B. Clay Jones, Judge.

"To be officially reported."

Action by G. M. Lovejoy against the Bessemer Waterworks Company. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

The complaint in this case contained two counts, as follows:

"Plaintiff claims of the defendant $10,000 as damages, for that heretofore, to wit, on the 19th day of March, 1902, the defendant operated the waterworks system for supplying water to the fire plugs of the city of Bessemer for extinguishing fires, under a contract with the city of Bessemer by the terms of which the defendant bound itself to keep its system of waterworks in effective working order, and to supply the said city, its citizens, and manufacturing establishments of said city with water for sanitary, fire, domestic, and manufacturing purposes, and to keep a full and sufficient quantity of water at all times available for all of the purposes aforesaid, and by the terms of this contract defendant had the exclusive right to furnish water within the limits of said city; that on said date plaintiff owned and resided in a certain house situated in said city of Bessemer, to wit, on Dartmouth avenue, between Twentieth and Twenty-First street, in said city, and had a large amount of personal property in said house; that on said day said house caught fire, and said fire department attended the scene of said fire, ready able, and willing to extinguish said fire, provided there had been a proper supply of water to be promptly had from said fire plug, and it was the duty of defendant, growing out of the aforesaid contract with the city of Bessemer, to exercise due care to furnish a full and available supply of water for said purpose; but, notwithstanding said duty defendant so negligently conducted itself in that regard that there was not a full and available supply of water to be had from said fire plug, and as a proximate consequence thereof plaintiff's house was destroyed by fire, and most or all of said personal property was destroyed by said fire, and plaintiff lost a large amount of furniture fixtures, books, bric-a-brac, and other valuable personal property, and said house was lost to plaintiff.

"Count 2. Plaintiff claims of the defendant the further sum of $10,000 as damages, for that, heretofore, to wit, on the 19th day of March, 1902, defendant operated the waterworks system for supplying water to the fire plugs of the city of Bessemer for the use of the fire department of the city of Bessemer for extinguishing fires; that on said date plaintiff owned and resided in a certain house situated in said city of Bessemer, to wit, on Dartmouth avenue, between Twentieth and Twenty-First street, in said city, and had a large amount of personal property in said house; that on said day said house caught fire, and said fire department attended the scene of said fire, ready, willing, and able to extinguish said fire, provided there had been a proper supply of water to be promptly had from said fire plug, and it was the duty of defendant, growing out of a contract with said city of Bessemer, to exercise due care to furnish a proper supply of water for said purpose; but, notwithstanding said duty, defendant wrongfully and willfully failed to furnish a proper supply of water at said fire plug for said purpose, and as a proximate consequence thereof said house was destroyed by fire, and most or all of said personal property was destroyed by said fire, and plaintiff lost a large amount of furniture, pictures, books, bric-a-brac, and other valuable personal property, and said house was lost to plaintiff, all to plaintiff's damage $10,000. Wherefore he sues."

The defendant interposed the following grounds of demurrer to the complaint, to each count separately: "(1) It does not appear that the defendant owed the plaintiff any duty to supply water to the fire plug of the city of Bessemer. (2) It does not appear that the defendant was under any contract to supply water for the extinguishment of said fire, for the breach of which contract plaintiff had any right of action. (3) It does not appear that the plaintiff was a party to the alleged contract between the defendant and the city of Bessemer, or that said contract inured to the plaintiff's benefit, so that he can maintain an action against defendant for the breach thereof. (4) No facts are alleged from which it appears that defendant was under any contract or duty to supply water for the fire plug of the city of Bessemer for extinguishing fires. (5) It does not appear that the defendant owed the plaintiff any duty to supply water for the use of the fire department for the extinguishment of the fire which it is alleged destroyed plaintiff's house and the personal property therein." These demurrers were sustained by the court, and, the plaintiff declining to plead over, judgment was rendered in favor of the defendant.

Bowman, Harsh & Beddow and Pinkney Scott, for appellant.

Benners & Benners, for appellee.

WEAKLEY C.J.

The overwhelming weight of authority is against the right of the plaintiff to maintain this action. The reason why he may not do so is that there is a want of privity between him and the defendant which disables him either from suing for a breach of the contract or for the breach of duty growing out of the contract. It is impossible at this late day to say anything new upon the subject, and it would be affectation to attempt any elaborate discussion of the question involved. The reasoning which leads to the conclusion may be found in many if not all, of the following cases, which have been examined and which hold against the right of a plaintiff, under similar conditions, to recover damages for losses by fire occasioned by the failure of a waterworks company to furnish a supply of water as it had stipulated to do in its contract with the municipality: Nickerson v. Bridgeport Hydraulic Co., 46 Conn. 24, 33 Am. Rep. 1; Foster v. Lookout Water Co., 3 Lee (Tenn.) 42; Davis v. Waterworks Co., 54 Iowa, 59, 6 N.W. 126, 37 Am. Rep. 185; Fowler v. Waterworks Co., 83 Ga. 219, 9 S.E. 673, 20 Am. St. Rep. 313; Ferris v. Water Co., 16 Nev. 44, 40 Am. Rep. 488; Becker v. Waterworks, 79 Iowa, 419, 44 N.W. 694, 18 Am. St. Rep. 377; Howsmon v. Trenton Water Co., 119 Mo. 304, 24 S.W. 784, 41 Am. St. Rep. 654, 23 L. R. A. 146; Fitch v. Seymour Water Co., 139 Ind. 214, 37 N.E. 982, 47 Am. St. Rep. 258; Britton v. Green Bay Water Co., 51 N.W. 84, 81 Wis. 48, 29 Am. St. Rep. 856; House v. Houston Water Co. (Tex. Civ. App.) 22 S.W. 277, affirmed by Supreme Court of Texas in 88 Tex. 233, 31 S.W. 179, 28 L. R. A. 532; Beck v. K. Water Co. (Pa.) 11 A. 300; Wilkinson v. Light, Heat & Water Co. (Miss.) 28 So. 877; Mott v. Cherry Vale Water Co., 48 Kan. 12, 28 P. 989, 15 L. R. A. 375, 30 Am. St. Rep. 267; Bush v. Artesian Water Co. (Idaho) 43 P. 69, 95 Am. St. Rep. 161; Eaton v. Fairbury Waterworks Co., 37 Neb. 546, 56 N.W. 201, 21 L. R. A. 653, 40 Am. St. Rep. 510; Allen...