Trustees of Jennie De Pauw Mem'l Methodist Episcopal Church v. New Albany Waterworks

Decision Date26 June 1923
Docket NumberNo. 24376.,24376.
PartiesTRUSTEES OF JENNIE DE PAUW MEMORIAL METHODIST EPISCOPAL CHURCH v. NEW ALBANY WATERWORKS.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Washington County.

Action by the Trustees of Jennie De Pauw Memorial Methodist Episcopal Church against the New Albany Waterworks. Judgment for defendant after demurrer to the complaint was sustained, and plaintiff appeals to the Appellate Court, from which the case was transferred under Burns' Ann. St. 1914, § 1394, subd. 2. Judgment affirmed.

Superseding opinion in 130 N. E. 827.

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

Geo. H. Voigt, of Jeffersonville, for appellee.

TRAVIS, J.

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 the 25th day of August, 1904, between appellee and the city, which franchise and contract was to run for a period of 25 years. By section 1 of the ordinance which created the franchise and contract referred to appellee was “empowered to maintain the system of waterworks 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 waterworks should be such as to supply sufficient water upon demand for the purposes of maintaining a hydraulic pressure of 90 pounds per square inch at a given point during the prevalence of a fire in said city, and at other times a pressure of 70 pounds per square inch. And by section 4 of the ordinance appellee “shall maintain at its own cost and expense 200 fire hydrants *** at such points along its line of water pipe as the same are now established. *** And said New Albany Waterworks shall keep said fire hydrants constantly in good order and working condition. *** For the use of such water from the fire hydrants for extinguishing fire and other public purposes as herein provided, the city of New Albany promises and agrees to pay the said New Albany Waterworks the sum of sixty dollars ($60.00) per annum for the first 200 of said fire hydrants. ***

On the 25th day of June, 1917, appellee availed itself of the terms of section 101 of the Public Service Act (Acts 1913, p. 202) 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 demur to the complaint.

[1] 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. Rep. 258; Atkinson v. Newcastle & Gateshead Water Works Co. (1877) Law Reports, 2 Ex. Div. 441; Belenger v. Montreal Water & Power Co. (1914) 50 Supreme Court Reports (Can.) 356; German Alliance Insurance Co. v. Home Water Co. (1912) 226 U. S. 220, 33 Sup. Ct. 32, 57 L. Ed. 195, 42 L. R. A. (N. S.) 1000;Lovejoy v. Bessemer Waterworks Co. (1906) 146 Ala. 374, 41 South. 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 sections 7 and 116 of the Public Service Commission Act (Acts 1913, page 167). Section 7 imposes the duty, and section 116 merely gives a right of action.

[2] Twenty years prior to the enactment of the statute in question this court had unmistakably declared the rule of law 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 section 7 of this act; and it is reasonable to presume, having before it this rule of law, which has received an 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 section 7 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 “it will be presumed that the Legislature does not intend by a statute to make any change in the common law beyond which it declares either in express terms or by unmistakable implication. The construction of a statute will be such as to avoid any change in the prior laws beyond what is necessary to effect the...

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9 cases
  • Reimann v. Monmouth Consol. Water Co., A--73
    • United States
    • New Jersey Supreme Court
    • February 14, 1952
    ... ... 250, 73 N.E. 210 (Sup.Ct.Ohio 1905); Trustees of Jennie De Pauw Memorial Methodist Episcopal urch v. New Albany Waterworks, 193 Ind. 368, 140 N.E. 540, 27 A.L.R ... ...
  • Freigy v. Gargaro Co.
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    ... ... Trustees De Pauw Church v. New Albany Water Works, ... A.L.R. 517. Cited also are waterworks cases, which we think ... are in a class by ... ...
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    ... ... In Trustees of Jennie DePauw Memorial Methodist Episcopal rch v. New Albany Water Works (1923), 193 Ind. 368, 140 N.E. 540, ... ...
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