| N.J. | Jun 18, 1913
The opinion of the court was delivered by
On the afternoon of July 8th, 1909, plaintiff’s stove factory and warehouse at Somerville
The defendant company was' incorporated for the purpose of supplying the towns of Somerville and Raritan with water. It had assumed, plaintiff contends, the duty of using reasonable care that there should be a constant supply of water at the fire hydants, under reasonable pressure for fire purposes, and the action was brought to recover his loss resulting, as he alleges, from failure on the part of the defendant to supply sufficient water at sufficient pressure to extinguish the fire.
The questions involved in this appeal arise out of the admission and rejection of evidence and the charge to the jury; and, as stated by plaintiff’s counsel, the serious question involved arose out of the very nature and theory of the action, for although the court may have erred in the admission and exclusion of evidence and in the charge to the jury, yet, if the-cause of action does not rest upon sound principles, such errors are harmless.
We think that tire question as to whether or not there is in law any liability of the defendant to the plaintiff is of the very essence of the action and'is dispositive of the case.
There is disclosed no contractual relation between the plaintiff and defendant, and therein this cause differs from Middlesex Water Co. v. Knappman-Whiting Co., 35 Vroom 240, where a company incorporated to supply water entered into a contract to furnish water to the owner of a factory with pressure sufficient for fire purposes, which factory was destroyed by fire by reason of the failure of the company to
The gravamen of plaintiff’s case here, as stated by himself, is, that had there been a reasonable supply of water at the stand pipe and hydrants in and about bis factory at the time of the fire, it would have been extinguished without loss. His position is that a duty was owed to the public to supply sufficient water of sufficient pressure to extinguish fires. To support this position he cites, among other eases, Olmstead v. Proprietors of Morris Aqueduct, 18 Vroom 311, in which the proprietors of the Morris aqueduct sought to condemn lands and divert streams of water to such extent as was necessary io carry out the purposes of the corporation, and the language of the Supreme Court to the effect that it is well known that when a company undertakes to supply a town with water fhe original methods to obtain water fo extinguish flies are abandoned by the people, and that under such circumstances it would be gross negligence in the company to permit the supply of water to he intermitted or diminished to any considerable extent and tints endanger the property within the town, was employed in combating the plaintiff’s contention that the defendant could not exercise the power of eminent domain further than to supply Morristown with water when ni fact the company had extended its pipe's and was supplying persons living outside of Morristown. Also, Long Branch Commission v. Tintern Manor Water Co., 4 Robb. 71, a ease of contention between the municipality and the water company concerning rates to be charged by the company to the
It will be observed that the language used by the judges in Olmstead v. Proprietors of Morris Aqueduct and Long Branch Commission v. Tintern Manor Water Co. was not spoken with reference to the liability of those companies with reference to an inadequate supply of water, or lack of supply at a certain pressure, but with reference to their duty generally of acquiring the sources of supply and providing for an adequate suppty, duties of a public character, the performance of which, by the public, in appropriate proceedings, could doubtless be compelled.
The case in hand, then, narrows itself to the question of duty or no duty owed by the defendant to the plaintiff at the time of the fire. As we have already seen, if there had been a contract between the parties, as in Middlesex Water Co. v. Knappman-Whiting Co., there would doubtless have been lia-'
This case was submitted to the jury under instructions which contained no error prejudicial to the plaintiff. The jury found for the defendant, and the judgment, based upon that finding, must be sustained.
For affirmance — The Chancellor, Chief Justice, Garrison, Swayze, Trenoitard, Parker, Voorhees, Mtnturn, Kaiasch, Bogert, Yredexburgh, Congdon, White, Ter-HUNE, IIePPENTTKUUER, JJ. 15.
For reversal — Hone.