Peeples v. South Carolina Power Co.

• Citation: 164 S.E. 605,166 S.C. 150
• Decision Date: 12 May 1932
• Docket Number: 13407.
• Parties: PEEPLES v. SOUTH CAROLINA POWER CO. et al.
• Court: United States State Supreme Court of South Carolina

164 S.E. 605

166 S.C. 150

PEEPLES v. SOUTH CAROLINA POWER CO. et al.

No. 13407.

Supreme Court of South Carolina

May 12, 1932

Appeal from Common Pleas Circuit Court of Barnwell County; J. Henry Johnson, Judge.

Suit by George W. Peeples against the South Carolina Power Company and others. From an order sustaining a demurrer to the complaint, plaintiff appeals.

Reversed and remanded.

Brown & Bush and Thos. M. Boulware, all of Barnwell, for appellant.

Harley & Blatt, of Barnwell, for respondents.

COSGROVE A. A. J.

By this complaint in this cause plaintiff seeks to hold defendants liable in damages for losses resulting from the destruction by fire of his residence and its contents in the town of Barnwell. The gravamen of the complaint is the alleged negligent, reckless, wanton, and willful failure of defendants to furnish a sufficient and adequate water pressure for fire extinguishment at the time of the fire.

Defendants demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action. From the order of Circuit Judge J. Henry Johnson, sustaining the demurrer, comes this appeal.

Plaintiff's loss occurred in October, 1929. The complaint alleges, in substance, that prior to February 18, 1929, the town of Barnwell had erected, maintained, and operated within its limits a waterworks system, including a supply of water water mains, hydrants, boiler, pump, and all necessary machinery and supplies adequate to supply water for all purposes, including the extinguishment of fires for itself its inhabitants, taxpayers, and freeholders, which waterworks system and service were sufficient to give the town and its inhabitants reasonably adequate protection against fire together with a favorable rate of fire insurance; that the waterworks system so established was constructed and maintained in consequence of the issuance of bonds by the town for that purpose, for the payment of which the taxpayers and freeholders were liable; that on February 18, 1929, the town of Barnwell entered into a lease of its entire waterworks system with the South Carolina Power Company; that the South Carolina Power Company and its codefendant thereafter undertook to operate said waterworks system and exercise all the rights, privileges and benefits arising under the lease; that on the 10th day of October, 1929, the residence of plaintiff caught fire, and that, before the building was in danger of being destroyed, the fire having originated in the kitchen thereof, the fire department of the town of Barnwell had reached his residence with equipment attached to nearby hydrants sufficiently close to enable the extinguishment of the fire before it had appreciably damaged any part of the residence or personal property therein located, if the defendants at that time had furnished sufficient water pressure to extinguish the fire; that at the time the fire hose was connected to the hydrants defendants had practically no pressure on the water; and that, while defendants were firing up the boiler at its firehouse, in order to make steam to furnish the pressure, the residence and its contents were destroyed.

The lease between the town and the company is set out in the complaint, as follows:

"This contract made by and between the South Carolina Power Company, as a corporation duly organized under the laws of South Carolina, party of the first part, hereinafter referred to as the Power Company, and the Town of Barnwell, a municipal corporation created under the laws of the State of South Carolina, party of the second part.

"Witnesseth, for and in consideration of the sum of ($1.00) and other valuable consideration, receipt of which is hereby acknowledged, the party of the first part and the party of the second part, agree to enter into the following contract:

"The Town of Barnwell agrees to lease its complete Municipal Waterworks System to the South Carolina Power Company, its Successors and Assigns, for a period of thirty (30) years with the understanding that this lease may be terminated at any time, upon six (6) months written notice from the Town of Barnwell that it desires to terminate said lease.

"As compensation for the use of said Waterworks System the South Carolina Power Company agrees to furnish all present fire hydrant service and all water used by the Town of Barnwell, without cost to the Town. The Power Company agrees to furnish water to the individual consumers at the present schedule of rates now in effect in the Town of Barnwell, except that 4,000 gallons will be allowed as a minimum and other rates to be in same proportion except that it is agreed by both parties that the water rates charged in this contract are to be under the supervision of the South Carolina Railroad Commission or other State Commission vested with such power.

"The Power Company agrees to install the following equipment necessary to maintain present fire insurance rates now in force in the Town of Barnwell with the understanding that the Town of Barnwell will reimburse the Power Company for 50 per cent. of said disbursements at the expiration of this lease; viz.: A small motor driven pump to keep tank full during normal conditions and a motor driven Centrifugal Pump having equal or greater capacity than present fire pump, with valves so arranged that in case of fire the tank can be cut off and this pump will pump direct into the main, so as to increase the pressure up to present standard.

"The Power Company agrees to maintain water system up to present standard but any improvements or extensions to water system are to be made only with the approval of the Town of Barnwell and are to be paid for by Town of Barnwell with the exception of small connections for new customers within one hundred feet of established water main.

"The Town of Barnwell agrees to pass the necessary ordinances covering rules and regulations for the operation of the waterworks system in the Town of Barnwell, which in their opinion are just and reasonable."

The complaint charges the following delicts and breaches of duty (characterized as negligent, reckless, wanton, and willfull as the proximate causes of plaintiff's loss:

"(1) In that the defendants had failed to furnish fire hydrant service equivalent to that furnished by the Town of Barnwell at the date of the said contract.

"(2) That the defendants had failed to install a motor driven centrifugal pump having equal or greater capacity than the fire pump maintained by the Town of Barnwell at the said Power House on the date the said contract was entered into, with valves so arranged that in case of fire the tank could be cut off and the pump would pump direct into the main, so as to increase the pressure up to the standard maintained by the Town of Barnwell at the date of the said contract.

"(3) The defendants failed to maintain the said water system up to the standard at which it was maintained at the date of the said contract.

"(4) That the defendants failed to perform each and every duty and obligation, at the time of the said fire, imposed upon them by the said contract and the facts herein pleaded.

"(5) That the defendants failed to have sufficient steam in the boiler at the said time to furnish sufficient water pressure in said water mains and hose to enable said fire department to extinguish said fire before it had reached and consumed said residence and personal property.

"(6) That the defendants and each of them failed to furnish sufficient pressure upon the water in the pipes of the said water system to cause the water to flow from the said hydrants and hose with sufficient force to reach and extinguish the said fire before it had reached and destroyed the main part of the said building and personal property.

"(7) That the defendants failed to furnish reasonably sufficient fire protection water service at the time and place herein mentioned."

The trial Judge was of the opinion that the cause of action alleged in the complaint was not maintainable under Ancrum v. Camden Water, Light & Ice Co., 82 S.C 284, 64 S.E. 151, 156, 21 L. R. A. (N. S.) 1029, and Cooke v. Paris Mountain Water Co., 82 S.C. 235, 64 S.E. 157. He cited, also, German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 33...