Trs. of Jennie Depauw Mem'l Methodist Episcopal Church v. Waterworks

• Citation: 130 N.E. 827
• Decision Date: 21 April 1921
• Docket Number: No. 10819.,10819.
• Parties: TRUSTEES OF JENNIE DEPAUW MEMORIAL METHODIST EPISCOPAL CHURCH v. NEW ALBANY WATERWORKS.
• Court: Indiana Appellate Court

130 N.E. 827

TRUSTEES OF JENNIE DEPAUW MEMORIAL METHODIST EPISCOPAL CHURCH

v.NEW ALBANY WATERWORKS.

No. 10819.^*

Appellate Court of Indiana, Division No. 2.

April 21, 1921.

Appeal from Circuit Court, Washington County; James L. Tucker, Judge.

Action by the Trustees of the Jennie Depauw Memorial Methodist Episcopal Church against the New Albany Waterworks. Judgment for defendant, and plaintiff appeals. Reversed, with instructions.

Stotsenburg & Weathers, of New Albany, Hottel & Patrick, of Indianapolis, and Hottel & Mead, of Salem, for appellant.

George H. Voigt, of Jeffersonville, George H. Hester, of New Albany, and Mitchell & Mitchell, of Salem, for appellee.

NICHOLS, J.

Action by appellant against appellee to recover for the loss and damage sustained by appellant on account of fire resulting from appellee's negligence. The complaint was in two paragraphs to each of which a demurrer was sustained. Appellant refused to plead further and elected to stand upon the complaint, and judgment was rendered against appellant for costs. From this judgment, this appeal.

The substantial averments of the complaint, so far as herein involved, are as follows: Appellant was on December 20, 1917, the owner of certain real estate in the city of New Albany, Floyd county, Ind., upon which was situated a stone church, the property of appellant, of the reasonable value of $20,000. In such church appellant had personal property of the total value of $4,000. Appellee at said time owned and operated, and for 14 years theretofore had owned and operated, in said city a system of waterworks for the purposes of supplying said city and its hydrants with water for fire protection, and for municipal and domestic purposes. On August 25, 1904, appellee entered into a certain contract in the nature of a franchise with said city, by the terms of which appellee was permitted and authorized to erect and maintain in said city its said waterworks for the purposes aforesaid, by which said contract appellee agreed to furnish an adequate supply of water to said city for protection of the property of said city and its inhabitants against fire. The contract covered a period of 25 years. It provided that appellee should furnish at its own cost and expense 200 fire hydrants at points then located, or to be thereafter located, by the city. Such hydrants were to be kept in good order and working condition, and were to be used by said city through its fire department for the purposes of extinguishing fires in said city. Such water system was to be so constructed and the hydrants kept in such condition that during the prevalence of fire the water supply should be sufficient for the purposes of extinguishing such fires. The city agreed to pay the said company for such purposes the sum of $60 per annum for each of the first 200 hydrants and $50 per annum for each additional hydrant over 200; the funds for such purposes to be paid out of the public revenue of such city raised by taxation of the property in said city and otherwise. After such contract was entered into, appellee did maintain in said city its system of waterworks in such contract provided for, and for the purposes therein contemplated. One of said hydrants was located on Vincennes street in said city and immediately in front of appellant's said property, which said hydrant was the nearest fire hydrant to said property. Appellee maintained said system under the terms of said contract for the purposes therein contemplated until June 25, 1917; its only right to maintain said waterworks being under the terms of said contract. On said June 25, 1917, pursuant to the provisions of section 101 of the act of the General Assembly concerning public utilities, approved March 4, 1913 (see Acts 1913, p. 167; section 10052x3, Burns' R. S. 1914), appellee filed with the clerk of said city, and with the Public Service Commission of Indiana, a written declaration legally adopted and executed by appellee to the effect that it surrendered said franchise so received from said city as aforesaid, and that it received by operation of law in lieu thereof an indeterminate permit as provided for in said act, and appellee did so surrender its franchise as aforesaid, and since June 25, 1917, appellee has been operating its water system in said city, and furnishing water to said city and its inhabitants for the purposes aforesaid, and has been maintaining its fire hydrants, including the said fire hydrant in front of appellant's property, all under its said permit. Said city has during all of said time maintained its fire department adequately equipped for the purposes of fighting and extinguishing fires occurring in said city with water so contracted to be furnished to such city by appellee from the hydrants aforesaid. Said hydrant in front of appellant's property was so located that the hose of such department could be attached to it, and in a few seconds' time water could be thrown in or on any fire that might occur in appellant's property, and such fire extinguished, if such hydrant had been maintained in proper repair and working condition. But on said December 30, 1917, in violation of said indeterminate permit, appellee did not furnish reasonably adequate service, and facilities, in this, that it negligently and carelessly suffered and permitted the said fire hydrant to become out of order and repair, and that water would not flow through it into the hose of the fire department, and that said hydrant could not be turned on or opened so that water would flow from the mains into the hose when attached thereto. Immediately upon the occurrence of the fire the fire department was notified and responded with the necessary hose and apparatus for extinguishing such fire, and attached its hose to said hydrant and attempted to open the same, and to obtain water therefrom, but was unable so to obtain it, and for that reason to extinguish the fire. At said time the fire was still in its incipiency, and could and would have been extinguished except for the defective condition of the hydrant aforesaid. Said building and its contents were totally destroyed, to the appellant's damage in the sum of $25,000, solely by the negligence of appellee as aforesaid.

Each of the rulings on said demurrers present the same questions so far as this appeal is concerned, and it is therefore unnecessary to set out the substance of the second paragraph of complaint.

It is to be observed that prior to June 25, 1917, being the date when appellee surrendered its franchise to said city and received its indeterminate permit to operate under the Public Utilities Act, appellee had been furnishing water to said city and to its inhabitants for fire protection under the terms and stipulations of such franchise, and that after it was granted such indeterminate permit it continued to furnish such service under the provisions of said Public Utilities Act, and that it has been acting and furnishing water to said city and its inhabitants for said purposes under said permit since June 25, 1917, and that it was so acting under said permit at the time of the fire here involved. Appellant concedes that under the common law as interpreted by the Supreme Court of this state, as well as by the courts of other jurisdictions, there was no liability to the individual citizen of the municipality, for the reason that there was no privity of relation between such citizen and such public service corporation. Appellant cites Fitch v. Seymour Water Co., 139 Ind. 214, 37 N. E. 982, 47 Am. St. Rep. 258, as an authority sustaining this proposition against appellant, and appellee relies upon such authority, together with many others both in and out of the state, which it cites. It is therefore taken for granted that the question of the common-law liability is not involved in this action, and appellee's liability, if any, must be determined by an examination and interpretation of the provisions of the Public Service Act. Acts 1913, p. 167; Burns' R. S. 1914, § 10052a et seq.

Section 101 of said act provides:

“Any public utility operating under an existing license, permit or franchise shall, upon filing at any time prior to the expiration of such license, permit or franchise and prior to July 1, 1915, with the clerk of the municipality which granted such franchise and with the Commission, a written declaration, legally executed, that it surrenders such license, permit or franchise, receive by operation of law, in lieu thereof an indeterminate permit as provided in this act, and such public utility...