Mugge v. Tampa Waterworks Co.

• Decision Date: 10 July 1906
• Citation: 42 So. 81,52 Fla. 371
• Parties: MUGGE v. TAMPA WATERWORKS CO.
• Court: Florida Supreme Court

42 So. 81

52 Fla. 371

MUGGE v. TAMPA WATERWORKS CO.

Florida Supreme Court, Division B.

July 10, 1906

Rehearing Denied Oct. 16, 1906.

Error to Circuit Court, Hillsborough County; Joseph B. Wall, Judge.

Action by Robert Mugge against the Tampa Waterworks Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

Syllabus by the Court

SYLLABUS

Where a waterworks company enters into a contract with a city, by the terms of which it enjoys extensive franchises and privileges such as the right to use the streets with its mains and hydrants, and to have special taxes levied on the property of the citizens, to be paid to it for its supply of water for public use in the extinguishment of fires, besides other rights and franchises, and thereby assumes the duty of furnishing water for extinguishing fires, and under such a contract constructs and operates its plant, and enjoys the proceeds of such special taxation, it enters upon a public calling and owes a duty to the taxpayers of the city to furnish water for the purpose of extinguishing fires, and it is liable in an action of tort for damages to a taxpayer whose property is destroyed by fire on account of its negligence in not furnishing water in accordance with the terms of the contract. In such a case the contract furnishes the measure of its duty.

COUNSEL

Lunsford & Dickenson, for plaintiff in error.

Sparkman & Carter and P. O. Knight, for defendant in error. Robert Mugge sued the Tampa Waterworks Company, a corporation organized and existing under and by virtue of the laws of Florida, in the circuit court of Hillsborough county and in his declaration alleges, in substance, that on and before the 23d of May, 1905, the defendant company owned and operated, and has ever since owned and operated, a plant and waterworks for the public and private supply of water within the city of Tampa, under and by virtue of a franchise granted by the city of Tampa to W. A. Jeter and A E. Boardman, their associates, successors, and assigns, and a contract made and entered into between the city of Tampa and Jeter and Boardman, embraced in an ordinance of said city numbered 7, adopted by the city council, which is made a part of the declaration as Exhibit A, along with other ordinances marked Exhibits B, C, and D; that the city council was duly authorized to pass said ordinances and make said contract; that said contract was assigned to the defendant company and accepted by it, and it has ever since 1st of January, 1889, operated its waterworks system under it; that under said ordinances and contract the defendant company was granted the franchise and right to lay pipes, and erect hydrants, fountains, and other structures in and on all the streets and public ways of the city, the exclusive right and privilege to construct and operate its waterworks for the term of 30 years, the right to receive $4,950 per annum from the city as rental for 110 double-nozzle hydrants to be placed on the streets not further apart than 400 feet, and $45 per annum for all additional hydrants to be installed as the city might grow, and the right to have sufficient taxes levied and collected annually on all taxable property in the city to meet the payment of hydrant rentals for public fire service, and also a special tax to be levied and collected for such purposes, and the proceeds kept as a separate fund to be exclusively devoted to the payment of such hydrant rentals, and that this special tax for hydrant rentals has been levied annually, and collected and paid to the defendant company; that in consideration of these rights, franchises, and rentals the defendant company agreed to erect waterworks, with a reservoir capable of holding 100,000 gallons of water, sufficient to give a pressure on the mains and from a hydrant located at the intersection of Washington and Franklin streets, and through 100 feet of fire hose and a 1-inch nozzle, to throw a stream of water vertically to a height or distance of 50 feet, giving a first-class fire protection; that it should erect 110 double-nozzle hydrants of the usual pattern, with nozzles to fit the fire department hose; that it should maintain a standard pressure of 40 pounds to the square inch on the water mains of said waterworks from its standpipe or reservoir during the life of the contract; that the waterworks company should assume all liabilities to persons and property arising from constructing or operating the same; that the principal and primary consideration moving the city to grant the franchises and rights aforesaid, as stipulated in the ordinance, was to provide for and secure to the citizens, residents, and property owners of the city better protection against fires; that said contract was made and acquiesced in by the defendant company for the benefit of citizens and property owners of the city, including the plaintiff, who was at the time of making the contract, and ever since has been, a citizen, property owner, and taxpayer in said city; that on the 23d of May, 1905, the defendant company had in use a water plant, mains, hydrants, and reservoir or tank adequate for a first-class fire protection; that prior to that day the city of Tampa had provided and was then maintaining at great expense a first-class fire department and thoroughly equipped fire stations in the four wards of the city; that on said 23d of May, 1905, the plaintiff was the owner of a two-story brick building, 60 feet wide by 100 feet in length, located at the northwest corner of the intersection of Franklin and Caro streets in said city; that said building was occupied by a tenant, and caught on fire and was burned on that day; that when the building caught on fire the tenant immediately turned in fire alarm, and in less than 10 minutes, and before the fire had gained any headway or done any appreciable damage, three fire companies, from as many stations, well equipped and ready for action, were on the scene; that the nozzles and hose were in every respect adequate and sufficient, and were attached to hydrants in easy reach of plaintiff's building, and near enough to have afforded water adequate for the ready extinguishing of the fire, if there had been sufficient water in the water mains and 40 pounds' pressure to the square inch on said mains, or had there been pressure sufficient to throw a stream of water 50 feet high, as provided in the contract; that, in addition, one of the fire companies had at the fire, within 10 minutes after it broke out, a powerful fire engine capable of throwing from 800 to 900 gallons of water a minute, and of giving a pressure of over 300 pounds to the square inch, and of generating a head of 100 pounds of steam in 5 or 6 minutes, and with a capacity for coupling three sets of four-inch hose, and of forcing simultaneously a stream from each entirely over or into any portion of said building, which engine was immediately under sufficient steam and coupled to one of the hydrants close to said building, and, in short, that every sufficient arrangement was made to extinguish the fire before damage resulted, but that, notwithstanding the promptness of the fire department and the sufficiency of its appliances, the water mains, on account of the negligence of the defendant company, were found without appreciable pressure and failed to yield any appreciable flow of water, and thus, solely by reason of the persistent, careless, willful, and wanton negligence on the part of the defendant company in not supplying the water mains and hydrants with water and water pressure as required by the contract, the plaintiff's building was destroyed by fire; that plaintiff, relying on the defendant to comply with its contract and on the efficiency of the fire department, had no fire insurance on his building. Plaintiff claims $25,000. The foregoing contains the substance of the declaration and exhibits, which occupy 31 pages of the record.

It appears from the first ordinance, which contains the contract, that the city guarantied the interest on $80,000 of the water company's bonds for 30 years at 6 per cent the city agreeing to pay the same and apply the amount to the rental of the hydrants. The amount of the bonds on which interest was to be paid was subsequently increased to $102,000, and the number of hydrants was increased to meet the necessities of a rapidly growing city.

The declaration was demurred to on the following grounds:

(1) Said declaration fails to state a cause of action.

(2) It shows there has been no breach of the contract between the city and the defendant.

(3) It shows no privity of contract between the defandant and plaintiff, so as to give plaintiff a right to sue for a breach of the contract between the defendant and the city of Tampa.

(4) The alleged breach of contract was not the proximate cause of the plaintiff's loss.

(5) The city, in making the contract with the defendant to supply water for extinguishing fires, was simply performing its public and governmental duty, and a breach of the contract on the part of the defendant does not authorize suit by a taxpayer.

On a hearing the demurrer was sustained, and a judgment rendered dismissing the suit. The case is here on writ of error from this judgment.

OPINION

HOCKER, J. (after stating the facts).

In view of the great importance of this case, and of the conflicting views of the courts upon the question involved, the facts set up in the declaration have been stated at some length, in order that they may be compared and contrasted with those given in the cases cited in the briefs and to which we shall allude. In the case of Nickerson v. Bridgeport Hydraulic Company, 46 Conn. 24, 33 Am. Rep. 1 (the first American case bearing on the question), it was held:...