Springfield Fire & Marine Ins. Co. v. Graves County Water & Light Co.

• Decision Date: 01 March 1905
• Citation: 120 Ky. 40,85 S.W. 205
• Parties: SPRINGFIELD FIRE & MARINE INS. CO. et al. v. GRAVES COUNTY WATER & LIGHT CO.
• Court: Kentucky Court of Appeals

85 S.W. 205

120 Ky. 40

SPRINGFIELD FIRE & MARINE INS. CO. et al. v. GRAVES COUNTY WATER & LIGHT CO.

Court of Appeals of Kentucky.

March 1, 1905

Appeal from Circuit Court, Graves County.

"To be officially reported."

Action by the Springfield Fire & Marine Insurance Company and others against the Graves County Water & Light Company. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

Wm. M Smith, W. J. Webb, and F. H. Crossland, for appellants.

Robbins & Thomas, for appellee.

NUNN J.

On the night of June 26, 1901, a fire occurred in the city of Mayfield, Ky. destroying a large amount of property, of the value of about $200,000. About $43,000 worth of this belonged to a firm of tobacco dealers known as Ligon, Allen & Co., who instituted suit against the appellee herein for damages on account of its failure to furnish water, under its contract with which to extinguish the fire. The appellee in this case demurred to that petition, which demurrer was overruled. It filed an answer, but subsequently withdrew it, and stood by its demurrer. The court in that case instructed the jury to find for Ligon, Allen & Co. the amount sued for, less the insurance on the property and salvage. The verdict of the jury was for $12,000, and from that judgment the water company appealed to this court, and endeavored to have this court overrule its decision in the case of Paducah Lumber Co v. Paducah Water Supply Co., reported in 89 Ky. 340, 12 S.W 554, 13 S.W. 249, 7 L. R. A. 77, 25 Am. St. Rep. 536, and other opinions following it. This court declined to overrule these cases, but approved them, and affirmed the judgment of the lower court. See the opinion in Graves County Water & Light Co. v. Ligon, 66 S.W. 725, 23 Ky. Law Rep. 2149.

The appellant Springfield Fire & Marine Insurance Company, having previous to the fire insured the property of Ligon, Allen &amp Co. for the sum of $5,000, paid the insurance after the loss, and took from the assured an assignment of all their rights, interests, and claims they had, for the loss of this property, against all persons, and especially against the appellee, Graves County Water & Light Company. The appellant insurance company together with Ligon, Allen & Co., who joined for the use and benefit of appellant company, instituted this action against the appellee to recover the $5,000, with interest from the date of payment; alleging, in substance, that the loss of this property resulted from the failure of appellee to comply with its contract that it had made with the city of Mayfield, and the citizens thereof, to furnish at all time sufficient water to extinguish fires. There appears not to have been any contract other than the ordinance passed by the city, which was accepted by the water company, and constituted the contract. The ordinance was filed with the petition, and consists of 14 sections. By the first section it is shown that the contract was for the supplying of water and electric lights to the city and its inhabitants both for public and private uses. By the second it is provided that the supply shall be from the most available source where good water can be obtained. This is to be determined by the company. It was also provided therein that the company should keep a sufficiency of engine and boiler power, so, if one engine or pump should get out of fix, that there should be another which could be used for pumping water. By the third it was provided that all mains and pipes used in construction by the company should be of suitable size to furnish an abundant supply of water for present and future requirements for the city, and should be laid in trenches, with not less than 30 inches' cover. It is further provided by that section that the company should give a public test of the power and capacity of the waterworks, of which the council should have notice, and at the test they should throw from separate hydrants, in the business part of the city, not less than three simultaneous streams of water, through 50 feet of hose and a one-inch ring nozzle, to the height of 80 feet, or a horizontal distance corresponding therewith. By the fourth it is provided that the company shall not unnecessarily obstruct the streets, sidewalks, etc., in constructing or repairing its plant. By the fifth the extension of the plant is provided for whenever it becomes necessary. By the sixth it is provided how the water company should be paid for the water furnished during the faithful operation of the plant. By the seventh it was provided that the water from the fire hydrants should be used only in the extinguishment of fires, and should furnish effective streams without the aid of portable engines. The eighth section was as follows: "The said Graves County Water and Light Company shall keep all fire hydrants rented of it, supplied with water and shall maintain them in effective working order, except during the time of repairing, or removing any hydrant which has become ineffective by accident or other cause than willful negligence on the part of said company, and the hydrants shall be in charge of such person as the city council shall appoint to that place." By the ninth the water company agreed to furnish free certain drinking fountains and water for city purposes. By the tenth there was provided the minimum dimensions of the standpipe and mains, and also that an arrangement should be made whereby the water could be pumped into the mains direct, as well as into the standpipe. By the eleventh there was provided for communication between the pumphouse and the city. By the twelfth it was provided that the city should protect the company in its property, and from waste of water by the consumers. By the thirteenth it was provided as to how the city might purchase the plant at the expiration of the contract. By the fourteenth it was provided when the plant should be completed. It was agreed that the city should organize, equip, and maintain a competent fire company, with all necessary appliances for extinguishing fires. It was alleged in the petition that the city complied with all the requirements on its part, and that the loss of this property was occasioned by the failure of the appellee to comply with its contract in failing to furnish the water as it obligated itself...