Brame v. Light, Heat & Water Co.

48 So. 728 | Miss. | 1909

Bletci-ier, J\,

delivered the opinion of the court.

Appellant was the owner of a handsome residence situated in the city of Jackson, and had installed therein in the bathroom a device known in this record as an “instantaneous gas heater.” This heater was so arranged that it was comparatively safe as long as there was a continuous flow of water, but highly dangerous if left burning after the water supply had ceased. On a certain afternoon appellant had lighted the gas and turned on the water, and then left the bathroom for a few moments. During her absence the flow of water ceased, and as a result the house was set afire and substantial damage resulted. The cessation in the flow of water was due to the fact that the water company, in order to repair a leaking hydrant, had cut off the water along the street in front of appellant’s residence, and no notice of the intention so to do had been given. The flow of water was suspended for about half an hour. It was shown on the hearing that the water, company had no notice of the fact that the heater had been installed in Mrs. Brame’s residence. From a peremptory instruction in appellee’s favor, Mrs. Brame appeals.

Several reasons are urged here in support of the action of the circuit court. It is said that the liability of the company towards its patrons must be measured by the terms and stipulations of the contract between the company and the city. This contract provides in effect that the water company shall at all times maintain a sufficient supply of water, except when suspended for necessary repairs. The contract further provides that the fire hydrants mentioned shall be kept in good order, and it is made the duty of the company to repair such hydrants forthwith, when notified that they are out of repair. It being shown in the instant case that a particular hydrant needed repairing, we are told that the contract with the city permitted, and, indeed, demanded, that the water should be cut off for a short time, since the hydrant could not otherwise be repaired. It is argued that the citizen, contracting with the company for water and joining his service pipe to the mains constructed by the company, has his rights determined by the contract with the city, and is therefore in no position to complain if there has been a temporary suspension of water service, due to the making of necessary repairs. On the other hand, it is said that this water company, under its franchise, contracts, and mode of1 operation, is a public service corporation, charged with certain obligations to the public, and especially its patrons, and that it must use all necessary and reasonable precautions, in conducting its business, not to so operate it as to lead to injury; that these instantaneous' heaters are in common use in the city of Jackson, of which fact the company either was or should have been informed; that the company is charged with knowledge of the fact that it will lead to disastrous conflagrations if the water is cut off; that, knowing this, notice should have been given of such intention, and the failure to do so is an actionable tort. Hence it is argued that the contract with the city is quite outside of this case.

We are not prepared to gainsay the soundness of appellant's contention on this phase of the case; but we do say that, while the contract may not contain the full mdasure of appellant’s rights and appellee’s duties, yet it may be looked to as valuable in determining whether the company has in this case been negligent. For this contract obligates the company to keep the fire hydrants in repair and permits a suspension of the water flow for this purpose. It can, therefore, not be argued that the company was negligent in cutting off the water for thirty minutes. The wrong must consist rather in failing to notify users of the particular device here involved. This narrows the compass of the inquiry to this: Was it actionable negligence to suspend the flow without notifying Mrs. Brame ? Liability for tort is predicated upon the view that the tort-feasor must be held liable for the natural consequences that will probably result from his wrongful act. Keeping this 'elementary truism in mind, we can see the importance of the admitted fact that the water company had no knowledge that this heater had been installed in this particular residence; for, if knowledge of the existence of such a fixture was wanting, how could the company reasonably anticipate that a temporary cessation of the water flow would lead to disastrous consequences ? The only possible method of avoiding this obvious obstacle to recovery is to say that it was the duty of the water company to keep abreast with the march of modern progress, and that it must be charged with knowledge of the fact that these heaters had come into general use; that, knowing that many citizens had installed these devices, it was the duty of the water company to search out these persons and notify them of the intention to shut off the water, or that some system of signaling or other manner of giving notice should have been adopted. To our mind this view imposes too high a duty upon the company. It calls for a degree of vigilance far beyond what may be characterized as ordinary or reasonable. It would charge the company with notice of every improvement which the fruitful ingenuity of an inventive age might devise, provided it depended in any degree upon the flow of water. To hold the company liable in this case, we must con-elude that the company might reasonably have anticipated, first, that Mrs. Brame had one of these instantaneous heaters; second, that she would undertake its operation during the particular half hour that the water was shut off; third, that it would be left unguarded while in operation; and, fourth, that the cessation in the flow would cause a fire. We think the chain of causation is too lengthy here to connect the loss with the failure to give notice.

We cannot see’ the relevancy of the cases cited by appellant. Beliance is had upon the case of Coy v. Indianapolis Gas Company, 146 Ind. 655, 46 N. E. 17, 36 L. R. A. 535. This case is authority for the proposition that a failure to supply gas is a tort; but it deals with the primary duty of the public service corporation not to breach its contract to supply in a reasonable manner its patrons with fuel, known to be for heating purposes. But here the damage resulted, not proximately through the failure of the company to supply water, but because of the interposition of'an unfamiliar mechanism, the existence of which was unknown to the company. The case of Guardian, etc. Trust Company v. Fisher, 200 U. S. 57, 26 Sup. Ct. 186, 50 L. Ed. 367, does-no more than decide that, if damages are recoverable for a failure of a water company to supply water’, such damages are properly recovered in an action of tort. The somewhat familiar greenhouse cases referred to- have their origin in special contracts to furnish a supply of water for particular purposes, well known to the water company. We are without direct precedent to guide us; but, applying familiar and. general principles to the facts before us, we are constrained to uphold the action of the lower court.

We have not thought it necessary to discuss the question of contributory negligence, based either upon the failure of the appellant to watch the heater or upon the alleged defective construction of the vent pipe.

’Affirmed.