Mills v. Moseley

• Decision Date: 08 February 1935
• Docket Number: No. 24217.,24217.
• Citation: 179 S.E. 159,50 Ga.App. 536
• Parties: MARTHA MILLS. v. MOSELEY.
• Court: Georgia Court of Appeals

50 Ga.App. 536

179 S.E. 159

MARTHA MILLS.

v.MOSELEY.

No. 24217.

Court of Appeals of Georgia,

Division No. 2.

Feb. 8, 1935.

Syllabus by Editorial Staff.

Error from Superior Court, Upson County; Wm. E. H. Searcy, Jr., judge.

Suit by G. W. Moseley against the Martha Mills. To review the judgment, defendant brings error.

Reversed.

Statement of facts by Jenkins, Presiding Judge.

The controlling averments of the petition were that the plaintiff and other residents relied upon the previous pumping of the water from the private reservoir of the defendant mill company through the city's distribution system, including the fire hydrants near the plaintiff's property, but the petition failed to show that the furnishing of the water to the city was other than gratuitous, and failed to indicate any privity of contract between the plaintiff and the defendant, or any legal duty to the plaintiff. There were additional averments, that the fire could easily have been extinguished and the property saved, if the person who was alleged to have been the city manager and also the outside superintendent of the mill company, acting within the scope of his employment, had not ordered the water cut off and refused to allow the firemen to throw it on the fire. It is alleged that this conduct was unnecessary, willful, malicious, and for the purpose of injuring and damaging the plaintiff and destroying his property; that the cutting off of the water and consequent destruction of the property of the plaintiff and adjacent owners were "the result of an understanding and conspiracy entered into between the defendant company and the said [person named as the city manager and outside superintendent of the company] in order to compel petitioner to abandon or sell his said property and go out of business in town"; and that the action of the person named was "the act of the defendant mills and they are liable therefor."

James R. Davis, of Thomaston, and Jones, Evins, Powers & Jones, of Atlanta, for plaintiff in error.

George Miller, of Thomaston, and Beck, Goodrich & Beck, of Griffin, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, Presiding Judge.

1. "The great weight of authority is to the effect that a resident of a city cannot recover of a waterworks company damages for loss by fire occasioned by the failure of such company to furnish, in accordance with its contract with the city, a sufficient supply of water to extinguish the fire." Holloway v. Macon Gas Light & Water Co., 132 Ga. 387, 394, 64 S. E. 330, 333. There being no privity of contract between the resident and the company, and no public duty on the part of the company as to the resident, he has no right of action either on the express contract of the city or in tort. Nor can he recover either ex contractu or ex delicto upon the theory that an implied contract and duty by the company to the resident arises in favor of the resident from the express contract between the city and the company. Fowler v. Athens City Water-Works Co., 83 Ga. 219, 221, 222, 9 S. E. 673, 20 Am. St. Rep. 313; Holloway v. Macon Gas Light & Water Co., supra, pages 395-400 of 132 Ga., 64 S. E. 330; Gnann v. Coastal Public Service Co., 44 Ga. App. 217, 160 S. E. 807; German Alliance Ins. Co. v. Homewater Supply Co., 226 U. S. 220, 33 S. Ct. 32, 57 L. Ed. 195, 42 L. R. A. (N. S.) 1000, modifying Guardian Trust Co. v. Fisher, 200 U. S. 57, 26 S. Ct. 186, 50 L. Ed. 367. The rule as to the privity of a resident and the duty of the company to him is different where the company under its franchise with the city is under the duty of furnishing and undertakes to furnish to individual residents a supply of water at fixed tolls, and wrongfully cuts off the supply thus furnished to a resident. Freeman v. Macon Gas Light & Water Co., 126 Ga. 843, 845-847, 56 S. E. 61, 7 L. R. A. (N. S.) 917.

2. Mere intent or motive will not create an actionable breach of contract or violation of a duty in the absence of any contract orduty. Adler v. Fenton, 24 How. (65 U. S.) 407, 16 L. Ed. 696; Second Nat. Bank v. Grand Lodge, 98 U. S. 123, 124, 25 L. Ed. 75. The existence, therefore, of even a willful, wanton or malicious purpose on the part of a water company to injure a resident of a city by failing to furnish to the city a supply of water or stopping such supply during a fire, by which property of the resident is destroyed, will give him no cause of action ex contractu or ex delicto against the company, unless there is some privity of contract or a statutory duty upon which to base the action. See German Alliance Ins. Co. v. Homewater Supply Co., supra.

3. A conspiracy upon which a civil action for damages may be founded is a combination between two or more persons to do some act which is a tort, or to do a lawful act by methods which constitute a tort. Petti-bone v. U....