Richmond v. Warehouse Corp.

• Decision Date: 16 June 1927
• Citation: 148 Va. 60
• Parties: CITY OF RICHMOND v. VIRGINIA BONDED WAREHOUSE CORPORATION and VIRGINIA BONDED WAREHOUSE CORPORATION v. GRINNELL CO., INC.
• Court: Virginia Supreme Court

Page 60

148 Va. 60

CITY OF RICHMOND v. VIRGINIA BONDED WAREHOUSE CORPORATION and VIRGINIA BONDED WAREHOUSE CORPORATION v. GRINNELL CO., INC.

Supreme Court of Virginia, Wytheville.

June 16, 1927.

Absent, Prentis, P.

1. MUNICIPAL CORPORATIONS — Liability for Negligence — Exercise of Govern mental, Legislative or Discretionary Powers. — A municipal corporation is not liable for the failure to exercise, or for the negligent or improper exercise of its governmental, legislative or discretionary powers, nor is it liable for the ultra vires acts of its servants.

2. MUNICIPAL CORPORATIONS — Liability for Negligence — Exercise of Proprietary or Ministerial Powers. — For failure to exercise, or for negligence in the exercise of those powers and privileges which are conferred upon a municipality for its private advantage, usually called "proprietary" or "ministerial," the municipality is liable in the same manner as a private individual.

3. MUNICIPAL CORPORATIONS — Liability for Negligence — Fire Department. — The organization and operation of a fire department for the extinguishment of fires is a governmental function for the defects or negligent operation of which the municipality is not liable, and, furthermore, it is not liable for the loss or destruction of buildings because of an inadequate supply of water, or for a failure to extinguish fires.

4. MUNICIPAL CORPORATIONS — Water Works — Liability for Negligence — Operation of Water Department — Water Used for the Extinguishment of Fires. — The operation of a water department of a municipality for the purpose of supplying water for domestic and commercial purposes is a private or proprietary right, and for negligence in such operation a municipality is liable in like manner as a private individual. The fact that the water is also used for the extinguishment of fires does not change the result.

2. MUNICIPAL CORPORATIONS — Water Works — Liability for Negligence — Operation of Water Department — Water used for the Extinguishment of Fires. — A characteristic example of a function undertaken by cities and towns in their private or proprietary capacity is the distribution of water to their inhabitants for domestic purposes. Such a function is one that is often performed by private water companies, and when assumed by a municipal corporation it is a purely commercial transaction between the municipality as a dealer and the citizen as a customer. It is accordingly well settled that a municipal corporation is liable for the negligence of its employees in connection with its water department, to the same extent as a private company, notwithstanding that the municipality uses the water system for the extinguishment of fires.

6. MUNICIPAL CORPORATIONS — Liability for Negligence — Water Works — Sprinkler System — Case at Bar. — In the instant case, an action by a warehouse company against a city for damages for the flooding of its warehouse through the mistake of a city employee in failing to cut off the water from the warehouse, upon the installation of a sprinkler system, it was argued that furnishing water for a sprinkler system belongs to the fire department of the city and not to its water department, and therefore, the city was not liable. The object of the installation of the sprinkler was the private benefit to be obtained by the plaintiff, and not to aid the city in preventing or extinguishing fires. The work to be done appertained to the city water department, and the negligence proved was that of an employee of that department. The city, therefore, could not defend on the ground that the negligence occurred in the exercise of a governmental power.

7. MUNICIPAL CORPORATIONS — Water Works — Flooding Warehouse — Case at Bar. — In the instant case, a warehouse company employed an independent contractor to install a sprinkler system in one of his warehouses. Water for the use of the new sprinkler system was obtained from a warehouse of the company in which the sprinkler system was already installed. When the contractor was ready to connect the water with the new sprinkler system, he notified the warehouse company and asked it to request the city to cut off the water at the other warehouse so that he could make the connection without flooding that warehouse. This the warehouse company did, and the city sent an employee to cut off the water. This employee, through mistake, turned off a dead valve which had no connection with any of the pipes and thereupon the warehouse company informed the independent contractor that the city man said that the water had been cut off; as a result when the pipe in the other warehouse was cut to make the connection, the warehouse was flooded with water. The plaintiff was damaged upwards of $12,000, for which the present action was brought. The use and operation of the water pipes in the city streets were under the city's exclusive management and control. The question of whether or not the city was negligent was submitted to the jury under instructions as favorable to the city as it could expect and the jury found that the city was negligent.

Held: That there was abundant evidence to support the verdict.

8. MUNICIPAL CORPORATIONS — Water Works — Liability of City for Negligence — Flooding Warehouse — Contributory Negligence — Case at Bar. — In the instant case, an action for damage by a warehouse company against a city for the flooding of its warehouse, through the negligence of an employee of the city water department in failing to return off the water from the warehouse when requested, the city contended that the warehouse company was guilty of contributory negligence, because when the warehouse sprinkler system was installed, the shut-off valve was marked "city sewer" instead of "city water works," and when the warehouse company obtained permission to extend the sprinkler service across the street to another warehouse, it violated the Richmond City Code by locating the shut-off valve in front of the first warehouse instead of in front of the warehouse to which the service was to be extended. The record clearly showed that the city did the original installation of the service pipe, valves, etc. The regulations of the water department provided that the superintendent of waterworks should have full control of pipes, valves and location in the streets and should do the work and charge the costs thereof to the applicant for any special service. The damage arose from the employee of the city water department turning a dead valve when requested to turn off the water instead of the cut-off valve.

Held: That the warehouse company was not guilty of contributory negligence.

9. INDEPENDENT CONTRACTORS — Negligence — Contributory Negligence — Installation of Sprinkler System — Case at Bar. — In an action by a warehouse company against a city for the flooding of its warehouse through the negligence of an employee of the city water department, the city relied on the contributory negligence of the warehouse company. The warehouse company was installing a sprinkler system through an independent contractor. This contractor requested the warehouse company to have the city cut off the water from the warehouse, but through the negligence of the employee of the city the water was not cut off, although the city informed the warehouse company that it had been cut off. The failure of the independent contractor to make a simple test to ascertain if the water had been cut off was relied upon by the city to show contributory negligence on the part of the warehouse company.

Held: That the warehouse company was not liable for the negligence of the independent contractor.

10. MUNICIPAL CORPORATIONS — Water Works — Liability of City for Negligence — Flooding Warehouse — Contributory Negligence — Case at Bar. — An independent contractor engaged in installing a sprinkler system for a warehouse company had the right to accept as true the city's own statement of a fact about a matter peculiarly within its knowledge, viz: That the water had been cut off from the warehouse. The city was chargeable with the knowledge of the location of its water pipes and was asked to cut the water off from the warehouse and sent an experienced employee to cut off the water.

Held: That the independent contractor had the right to accept as true, in an action against the city, the statement of the city that the water had been cut off and was not obliged to make a test to ascertain whether it had been cut off.

11. MUNICIPAL CORPORATIONS — Water Works — Liability of City for Negligence — Release by Applicant for Service — Case at Bar. — The instant case was an action by a warehouse company against a city for negligence in reporting that the water had been cut off from its warehouse when it had not been cut off. The warehouse company was extending its sprinkler service from one warehouse to another and the city granted it permission to do so on condition that the warehouse company should indemnify and save harmless the city from any charge, damage or cost by reason of any person being injured or damaged by the operation. The line from which the city was asked to cut off the water was totally unconnected with the line for the installation of which this permission was obtained. If there was any confusion as to the location of the cut-off, it was the city's own fault.

Held: That the release was no defense to the action against the city.

12. MUNICIPAL CORPORATIONS — City Contracting Against its Own Negligence — Negligence of City — Release by Applicant for Special Service — Case at Bar. — In the instant case, a warehouse company obtained permission from a city to extent its sprinkler service from one warehouse to another across the street. This permission was granted on condition that the warehouse company would indemnify and save harmless the city from any charge, damage or cost that the city might be required to pay by reason of injury to any person by the laying, existence or...