Morton v. Washington Light & Water Co.

• Decision Date: 14 April 1915
• Docket Number: 40.
• Parties: MORTON ET AL. v. WASHINGTON LIGHT & WATER CO.
• Court: North Carolina Supreme Court

84 S.E. 1019

168 N.C. 582

MORTON ET AL. v. WASHINGTON LIGHT & WATER CO.

No. 40.

Supreme Court of North Carolina

April 14, 1915

Appeal from Superior Court, Beaufort County.

Action by Charles L. Morton and another against the Washington Light & Water Company. From judgment for plaintiffs, defendant appeals. Affirmed.

Walker and Hoke, JJ., dissenting.

This action is a consolidation of two actions originally brought and entitled "Charles L. Morton v. Washington Light & Water Co." and "W. B. Morton, Trading as W. B Morton & Co. v. Washington Light & Water Co." The alleged damage, in each instance, was based upon the same alleged negligence, and at the trial of the action the two causes were consolidated by consent. The plaintiff Charles L Morton was originally suing for the destruction of a store building owned by him by fire, which occurred on the night of July 27, 1911, and the plaintiff W. B. Morton was suing for the destruction or loss of a stock of goods contained in the store at that time, and owned by the said W. B. Morton. Both plaintiffs in their complaint alleged that the defendant entered into a contract with the town of Washington in 1901 to build and maintain a waterworks system, and to furnish a certain pressure with which to fight fires; that on the night of July 27, 1911, a fire originated in a building adjoining the building of the plaintiff Charles L. Morton, and that, by reason of the negligent failure of the defendant company to furnish the pressure which it contracted to furnish, the fire, originating in the George Morton building (that is, the building adjoining the Charles L. Morton building), spread to and destroyed or burned the building of the plaintiff Charles L. Morton and the stock of goods therein owned by the plaintiff W. B. Morton. The contract stipulated that it was--

Citizens whose property was destroyed because of a water company's failure to furnish agreed pressure for fire protection held entitled to recover.

"to afford a supply of water for the use of the citizens of the town of Washington, and in order to furnish protection from fire to the property of said citizens."

The buildings were separated by a wooden partition. The building owned by Charles L. Morton was insured for the sum of $4,000 which insurance he collected. The stock of goods owned by W B. Morton was insured for $1,000, which insurance he collected. The plaintiff Charles L. Morton in his original complaint sued for $2,000 for damage to the building, and the plaintiff W. B. Morton sued for $1,500 for loss of personal property. At the time and upon the day the cause was set for trial, the plaintiff Charles L. Morton, for the first time, asked leave of the court to amend his complaint. The court, in its discretion, over the objection of the defendant, permitted the amendment. The defendant thereupon moved the court for a continuance of the cause until the next succeeding term. This motion the court refused, but continued the cause until the next succeeding day, or for a period of about 24 hours. The following verdict was rendered by the jury:

"1. At the time of the injury to and destruction of the property of plaintiffs by fire, had the defendant water company undertaken to furnish the city of Washington a supply of water according to the plans and specifications contained in the agreement and contract of December 11, 1901, as set out in the complaint, in the quantity, under the pressure, and for the purposes therein recited? Answer: Yes.

2. At such time was said defendant company engaged in supplying water to said city of Washington under and pursuant to said agreement and contract, and in the exercise and enjoyment of the privileges of the same, and demanding and collecting from the said city the price stipulated in the said agreement for furnishing water, at its customary times for making such collections, during the year and period in which plaintiff's loss accrued? Answer: Yes.

3. At the time of the injury to and destruction of the property of the plaintiffs by fire, did the defendant water company fail and neglect to furnish the quantity and pressure of water it had agreed to furnish on occasion of fire in its said contract with the city of Washington? Answer: Yes.

4. If so, was the property of the plaintiffs injured and destroyed by the negligence of defendant as alleged in the complaint? Answer: Yes.

5. If so, what damages, if any, is the plaintiff Charles L. Morton entitled to recover of the defendant? Answer: $2,500.00 with interest.

6. If so, what damages, if any, is the plaintiff W. B. Morton entitled to recover of the defendant? Answer: $1,000.00, with interest."

The defendant raised the question as to its liability to the plaintiff by exception to the judgment, prayers for instruction, and by motion for judgment of nonsuit. There are other exceptions relied on which will appear in the opinion of the court. There was judgment for the plaintiffs, and the defendant appealed.

Rodman & Bonner and W. B. Rodman, Jr., both of Washington, N. C., and W. A. Wilcox, of Scranton, Pa., for appellant.

Daniel & Warren and A. D. MacLean, all of Washington, N. C., for appellees.

ALLEN J.

The principles announced in Gorrell v. Water Co., 124 N.C. 328, 32 S.E. 720, 46 L. R. A. 513, 70 Am. St. Rep. 598, established the liability of the defendant to the plaintiffs upon the facts found by the jury and those admitted in the pleadings, and the defendant, realizing this, asks us to overrule that case. We have therefore re-examined the decisions in this and other jurisdictions, and the arguments and reasoning upon which they rest, and after full consideration have determined to adhere to the former ruling of this court. It may be conceded, as contended by the defendant, that the weight of authority, measured by number, is against the decision in the Gorrell Case, but this was known and considered at the time of its rendition, and since then, instead of receding from the position then taken, the doctrine has been affirmed in Fisher v. Water Co., 128 N.C. 357, 38 S.E. 912; Lacy v. Webb, 130 N.C. 546, 41 S.E. 549; Gastonia v. Eng. Co., 131 N.C. 368, 42 S.E. 857; Wadsworth v. Concord, 133 N.C. 594, 45 S.E. 948; Voorhees v. Porter, 134 N.C. 602, 47 S.E. 31, 65 L. R. A. 736; Kernodle v. Tel. Co., 141 N.C. 445, 54 S.E. 423, 8 Ann. Cas. 469; Helms v. Tel. Co., 143 N.C. 393, 55 S.E. 831, 8 L. R. A. (N. S.) 249, 118 Am. St. Rep. 811, 10 Ann. Cas. 643; Wood v. Kincaid, 144 N.C. 395, 57 S.E. 4; Clark v. Bonsal, 157 N.C. 275, 72 S.E. 954, 48 L. R. A. (N. S.) 191; Brady v. Randleman, 159 N.C. 436, 74 S.E. 811, and in Jones v. Water Co., 135 N.C. 554, 47 S.E. 615.

In the last case the contract was similar to the one now before us and the court said upon the right to sue:

"There can be no real contention that the plaintiff, a citizen and taxpayer, and one of the beneficiaries in the purview of this contract, cannot prosecute this action. He is the real party in interest. He is taxed with payment of his pro rata of the annual rental. The town cannot maintain this action for the loss sustained by him by reason of the defendant's failure to perform the provisions of the contract above recited. For this injury the plaintiff alone can sue. This point was discussed and settled in Gorrell v. Water Co., 124 N.C. 328 , 46 L. R. A. 513, 70 Am. St. Rep. 598, which has been followed in Fisher v. Water Co., 128 N.C. 375 , and cited and approved in Lacy v. Webb, 130 N.C. 546 and Gastonia v. Engineering Co., 131 N.C. 366 , in which last the doctrine is elaborated. The same principle had been often affirmed prior to Gorrell's Case, to wit, that the beneficiary of a contract, though not a party to it nor expressly named therein, can maintain an action for a breach of such contract causing injury to him, if the contract was made for his benefit."

It also appears that the case has been followed in Mugge v. Tampa Waterworks, 52 Fla. 371, 42 So. 81, 6 L. R. A. (N. S.) 1171, 120 Am. St. Rep. 207, Springfield Ins. Co. v. Graves County Water Co., 120 Ky. 40, 85 S.W. 205, and in Guardian Trust Co. v. Fisher, 200 U.S. 57, 26 S.Ct. 186, 50 L.Ed. 367. The court, affirming the principle, says:

"It is true that a company contracting with a city to construct waterworks and supply water may fail to commence performance. Its contractual obligations are then with the city only, which may recover damages, but merely for breach of contract. There would be no tort, no negligence, in the total failure on the part of the company. It may also be true that no citizen is a party to such a contract, and has no contractual or other right to recover for the failure of the company to act, but if the company proceeds under its contract, constructs, and operates its plant, it enters upon a public calling. It occupies the streets of the city; acquires rights and privileges peculiar to itself. It invites the citizens, and if they avail themselves of its conveniences and omit making other and personal arrangements for a supply of water, then the company owes a duty to them in the discharge of its public calling; and a neglect by it in the discharge of the obligations imposed by its charter, or by contract with the city, may be regarded as a breach of absolute duty, and recovery may be had for such neglect. The action, however, is not one for breach of contract, but for negligence in the discharge of such duty to the public, and is an action for a tort."

Another reason for refusing to sustain the position of the defendant is that it entered into the contract with the city of Washington in 1901, two years after the Gorrell Case was decided, and as all laws relating to the subject-matter of a contract enter into and form a part of it as if expressly referred to or...