Trustees of Jennie DePauw Memorial Methodist Episcopal Church v. New Albany Water Works
| Decision Date | 26 June 1923 |
| Docket Number | 24,376 |
| Citation | 140 N.E. 540,193 Ind. 368 |
| Parties | Trustees of Jennie DePauw Memorial Methodist Episcopal Church v. New Albany Water Works |
| Court | Indiana Supreme Court |
From Washington Circuit Court; William H. Paynter, Judge.
Action by the Trustees of Jennie DePauw Memorial Methodist Episcopal Church against the New Albany Water Works. From a judgment for defendant, the plaintiffs appeal. Affirmed. (Transferred from Appellate Court under subdivision 2, § 1394 Burns 1914.)
Stotsenburg & Weathers, Hottel & Patrick and Hottel & Mead, for appellants.
George H. Voight, George H. Hester, Mitchell & Mitchell, Charles Remster, Henry H. Hornbrook, Albert P. Smith, Montgomery & Montgomery and Baker & Daniels, for appellee.
Travis J. Myers, J., did not participate.
Appellant sued appellee for damages for the total destruction of its church building and contents, occasioned, as alleged, by the negligent failure of appellee to maintain fire hydrants in condition for use.
The complaint alleges that appellee is a private corporation which owned and operated the waterworks in the city of New Albany, by virtue of a franchise and contract, entered into on August 25, 1904, between appellee and the city, which franchise and contract was to run for a period of twenty-five years. By § 1 of the ordinance, which created the franchise and contract referred to, appellee was "empowered to maintain the system of water-works in and for the city of New Albany, and to supply such city and its citizens with pure and wholesome water." Section 3 of the ordinance provided that the capacity of such water-works should be such as to supply sufficient water upon demand for the purposes of maintaining a hydraulic pressure of ninety pounds per square inch at a given point during the prevalence of a fire in said city, and at other times a pressure of seventy pounds per square inch. And by § 4 of the ordinance, appellee * * *"
On June 25, 1917, appellee availed itself of the terms of § 101 of the Public Service Act (Acts 1913 p. 167, § 10052x3 Burns 1914) by filing with the clerk of the city of New Albany and with the Public Service Commission a written declaration legally adopted and executed, to the effect that it surrendered its franchise, by virtue of the ordinance of said city of New Albany, and received in lieu thereof an indeterminate permit granted by the Public Service Commission, and was operating under said indeterminate permit at the time of the act of negligence here in question.
Appellant owned the church building and contents situate in the city of New Albany, which were totally destroyed by fire December 30 1917, which total destruction was caused, as alleged, because the appellee negligently and carelessly suffered and permitted the fire hydrants nearest to such church building to become out of order and repair so that the water could not be turned on at said hydrants at the time of such fire. Error is predicated solely upon the ruling of the court sustaining appellee's demurrer to the complaint.
Under the common law as interpreted by this court, sustained by a formidable line of authorities, neither a municipality operating its own waterworks nor a privately owned water company serving a city and its inhabitants with water for domestic purposes and for the purpose of extinguishing fires is liable in damages to any individual for a loss from fire occasioned by the failure to obtain water from the fire hydrants to extinguish such fire. Fitch v. Seymour Water Co. (1894), 139 Ind. 214, 37 N.E. 982, 47 Am. St. 258; Atkinson v. Newcastle & Gateshead Water Works Co. (1877), 2 Ex. Div. 441; Belenger v. Montreal Water & Power Co. (1914), 50 Can. S. C. 356; German Alliance Insurance Co. v. Home Water Co. (1912), 226 U.S. 220, 33 S.Ct. 32, 57 L.Ed. 195, 42 L.R.A. (N.S.) 1000; Lovejoy v. Bessemer Water Works Co. (1906), 146 Ala. 374, 41 So. 76, 6 L.R.A. (N.S.) 429, 9 Ann. Cas. 1068. 3 Dillon, Municipal Corporations (5th ed.) § 1340, where a collection of the cases pro and con are cited.
Appellant admits that there is no liability in its behalf under the common law, but bases its right of recovery upon §§ 7 and 116 of the Public Service Commission Act, (Acts 1913 p 167, §§ 10052g, 10052m4 Burns 1914). Section 7, supra, imposes the duty, and section 116, supra, merely gives a right of action. Twenty years prior to the enactment of the statute in question, this court had unmistakably declared the rule to be that a water company serving a city and its inhabitants with water for domestic purposes and for the purpose of extinguishing fires, was not liable to a private citizen although a taxpayer of the municipality, for a failure to supply water at the fire hydrant, by which failure such private citizen suffered a loss. Fitch v. Seymour Water Co., supra. The ruling by this court had been preceded by the same ruling by many courts of other states and by the English courts, and has since that time been supported by a great number of decisions of courts of last resort in support of that rule. It is of interest in the consideration of this question to note that but three states of the United States have adopted a rule contrary to the one above enunciated. The legislature of this state had before it, in unmistakable language in the opinion of this court, this rule of law, when it drafted and enacted § 7 of this act, supra; and it is reasonable to presume, having before it this rule of law, which has received the almost unanimous support of the courts of the English speaking world, that by so concisely stating the rule, it intended to limit the duty under it to establish judicial interpretation, and that, had it intended to enlarge its scope, it would have done so by undoubted and unmistakable language. And the court now is constrained to hold that, inasmuch as the first sentence of § 7, supra, merely declares what was the rule at common law and the rule in this state, it did not intend to vary the rule by the use of language so plain in stating the prior rule, for Chicago, etc., R. Co. v. Luddington (1910), 175 Ind. 35, 42, 91 N.E. 939. This rule of law is so well entrenched that it is illuminating to reiterate that--"When a statute is merely declarative of the common law, or in affirmance of it, and is in general terms of the common law, there is no safer rule for its construction than that so well stated by Sutherland upon Statutory Const. § 290, that, 'The best construction of a statute is to construe it as near to the rule and reason of the common law as may be, and by the course which that...
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