Prindle v. Sharon Water Co.

• Decision Date: 18 October 1926
• Citation: 105 Conn. 151,134 A. 807
• Court: Connecticut Supreme Court
• Parties: PRINDLE ET AL. v. SHARON WATER CO.

134 A. 807

105 Conn. 151

PRINDLE ET AL. v. SHARON WATER CO.

Supreme Court of Errors of Connecticut.

October 18, 1926

Appeal from Superior Court, Litchfield County; Arthur F. Ells Judge.

Action in two counts by Ruth Prindle and others against the Sharon Water Company: (1) For breach by defendant of its contract and (2) for breach of its duty to supply water for fire purposes. The defendant moved that the plaintiffs Prindle be dropped for misjoinder, and also demurred to each count. By stipulation, the motion was granted and the demurrers sustained pro forma, and, the plaintiffs refusing to plead over, judgment was rendered for the defendant, and plaintiffs appealed. No error.

The complaint alleges these facts: The defendant is a corporation specially chartered by the state of Connecticut for the purpose of supplying the village of Sharon and its immediate vicinity with an abundant supply of pure water for public private, and domestic use. The defendant accepted the charter and undertook the duties thereby imposed. The Sharon Fire District is a municipal corporation chartered in this state and located in the town of Sharon. Its purpose is the protection of the property of its members from fire. It owns no substantial property other than fire apparatus. The plaintiffs, Ruth Prindle and Charles M. Prindle, are residents and taxpayers in the Sharon fire district, and are the owners of certain real and personal property therein. In May, 1915, the other plaintiff, the Sharon fire district, for the benefit of its residents, taxpayers, property owners, and members, and for the protection of the property of the plaintiffs and of other property situated in the district entered into a contract with the defendant, in which the defendant, as the party of the first part, agreed that it " will maintain in good working order 24 fire hydrants in the limits of the Sharon Fire District and will at all times furnish at such hydrants water service for fire and testing purposes," and in which the defendant agreed to do various acts to facilitate the performance of such service in relation to the hydrants and the flow of water in the mains, and the Sharon fire district agreed to pay the defendant an annual payment for fire service of $400. The charter of such district provides that the Sharon fire district shall have full power and authority to organize and continue within its limits such number of fire companies hook and ladder and hose companies, as it shall deem needful, and the fire district had hose and a pumper with which to extinguish fires.

On January 25, 1925, the defendant failed to perform its obligations under its contract, and failed to furnish water service for fire purposes, and failed to do certain acts provided for in the contract, by reason thereof the Prindles' building and contents were consumed by fire, and much damage was caused by the defendant's breach of such contract. The defendant moved that the Prindles be dropped as plaintiffs because not in privity of contract with either party to the contract, and hence improperly joined as plaintiffs. The defendant also demurred to the two counts in the complaint because, under the allegations of the complaint, the defendant owed no duty to the Prindles to carry out the contract (Exhibit A), and hence, also, no negligence could arise as to them for failure to carry out such contract.

There is no allegation or claim of damage to any property of the Sharon fire district. There is a general claim of $15,000 damages.

Lawrence A. Howard, Edward W. Broder, and John F. Brady, all of Hartford, for appellants.

Arthur L. Shipman, of Hartford, and Howard F. Landon, of Salisbury, for appellee.

CURTIS, J. (after stating the facts as above).

Under the pleadings, the first question which naturally presents itself for decision is whether the court correctly sustained the motion of the defendant that the Prindles be dropped as plaintiffs because they have, under the allegation of the complaint, no cause of action against the defendant, and hence were improperly joined with the Sharon Fire District. The demurrer to the complaint raises the same question as to the Prindles, and also raises the question whether the Sharon fire district has a cause of action under the allegations of the complaint. There is no allegation of any injury to any property of the fire district, and the case has been argued solely upon the claim that the Prindles, inhabitants of the district, have a cause of action. Under the claims made, we assume that no claim for damages on behalf of the fire district is made.

We turn to the claims made in behalf of the Prindles. In the case of Nickerson v. Bridgeport Hydraulic Co. (1878) 46 Conn. 24, 33 Am.Rep. 1, a state of facts substantially like the facts in the case at bar was presented to us, and the same questions of law arose for decision. There was a contract between the city and the hydraulic company similar to the contract here involved, and we held that the plaintiff inhabitant of the city was not in privity with the city in that contract, and hence had no cause of action ex contractu or ex delicto against the water company for breach of such contract and for failure to supply the hydrants of the city with water, by reason of which neglect the plaintiff's property was destroyed by fire. It is now urged that the case of Baurer v. Devenis (1923) 99 Conn. 203, 121 A. 566, has extended the right of a third party beneficiary to sue, and that the plaintiff in the case at bar is in privity with the Sharon fire district in its contract, with the defendant as a third party beneficiary, and can maintain this action either ex contractu or ex delicto against the defendant, and hence was properly joined with the fire district as a plaintiff in an action primarily based on the contract, and that the motion was improperly granted and the demurrer improperly sustained.

In Nickerson v. Bridgeport Hydraulic Co., supra, it was alleged in the complaint that the hydraulic company was chartered and organized to supply the inhabitants of Bridgeport with water, and contracted with the city to supply the city hydrants with water, and by their neglect to do so the fire department of the city was not able to extinguish a fire occurring in the city; we held that, under such allegations, the plaintiff inhabitant had no cause of action against the water company, and we say (at page 27):

" It is true that the count states that the defendants are a corporation organized to supply the inhabitants of Bridgeport with water to extinguish their fires. But does this create an obligation to supply the water without anything more? A corporation is organized to manufacture woolen goods and sell them in the market. Does this alone create an obligation to manufacture the goods and supply them to A., whether he pays anything for them or not? It is not alleged in the count that the plaintiffs ever paid anything, or even promised to pay anything to the defendants for a supply of water to extinguish their fires."

The court thus conclusively demonstrated that the mere fact of the organization of the defendant as a corporation to supply the inhabitants of Bridgeport with water to extinguish their fires did not create any obligation upon it to do so upon which a cause of action for failure or neglect to do so could be based, and intimates that some contract or agreement to do so must be alleged.

The plaintiff then sought to establish such a contract by alleging a contract between the city and the hydraulic company, and, as to this claim, among other things, we say (at page 29 et seq.):

" We think it is clear that there was no contract relation between the defendants and the plaintiffs, and consequently no duty which can be the basis of a legal claim."

This was a holding that the inhabitant and the city were not in privity in the contract between the city and the hydraulic company. We also say:

" The city owed a public duty to the plaintiffs to extinguish their fire. The hydrants were not supplied with water, and so the city was unable to perform its duty."

In German Alliance Ins. Co. v. Home Water S. Co., 226 U.S. 220, 33 S.Ct. 32, 57 L.Ed. 195, 42 L.R.A. (N. S.) 1000, this subject was considered, and the court in its opinion, at page 227 (33 S.Ct. 34) said:

" But the city was under no legal obligation to furnish the water, and, if it voluntarily undertook to do more than the law required, it did not thereby subject itself to a new or greater liability. It acted in a governmental capacity, and was no more responsible for failure in that respect than it would have been for failure to furnish adequate police protection. If the common law did not impose such duty upon a public corporation, neither did it require private companies to furnish fire protection to property reached by their pipes and there could, of course, be no liability for the breach of a common law, statutory or charter duty which did not exist."

We shall now consider the question whether the citizens of the Sharon Fire District are in privity with the district in its contract with the Sharon Water Company. In the case of Baurer v. Devenis, supra, we may properly be held to have brought our law into harmony with the law as now generally established, to the effect, " that a person for whose direct and exclusive benefit an express promise is made in a valid contract between others may maintain an action upon it in his own name."

The question now before us arose in an almost identical situation, and was dealt with in Howsmon v. Trenton...