148 Va. 60 | Va. | 1927
delivered the opinion of the court.
The Virginia Bonded Warehouse Corporation brought an action of trespass on the case against the city of
Each of the plaintiffs in error stands in this court practically as on a demurrer to the evidence, and the case will be stated from that standpoint.
So far as the liability of the city of Richmond is concerned, the facts are, in the main, as stated in the brief of counsel for the Warehouse Company. The facts are that the plaintiff, Virginia Bonded Warehouse Corporation, is a corporation organized and existing under the laws of the State of Virginia, and is engaged in the business of a warehouseman in the city of Richmond. On and prior to the 17th day of September, 1923, the plaintiff owned and operated three warehouses onCary street between Seventeenth and Eighteenth streets, in the said city; which warehouses were commonly known, and will be designated, as Warehouse A, Warehouse B and Warehouse C. Warehouses A and C were adjoining buildings, located on the north side of Cary street, which street runs east and west, and Warehouse B was located across Cary street on the south side. In these warehouses, prior to the aforesaid time, the plaintiff had received at different times from sundry persons, firms and corporations, large quantities of goods, wares and merchandise for storage and safekeeping, in return
The Grinnell Company agreed to perform its contract on the basis of expert knowledge and skill, and
Relying upon this information, the employees of the Grinnell'Company proceeded to make the desired connection. It developed that the employees of the city had, by mistake, turned the wrong valve, and had not cut the water off, and, as a result, when the pipe in Warehouse A was cut by the employees of the Grinnell Company that warehouse was flooded with water, and the plaintiff was damaged upwards of $12,000, for which this action was brought.
Numerous errors are assigned by the city of Richmond, but it is said in its petition for a writ of error that: “These several assignments of error will not be taken up and discussed seriatim, for the reason that many of these overlap and therefore needless repetition would ensue. It is believed that the issues involved can best be presented to your honors by an analysis of the grounds assigned in petitioner’s motion to dismiss, as follows: First. The evidence clearly shows that, in offering to the plaintiff free of charge the facilities for preventing the inception and spread of fire, petitioner was exercising a governmental function for the improper exercise of which petitioner cannot be held liable in damages. Second. That the evidence clearly shows that petitioner was not guilty of negligence in attempting to shut off the water at plaintiff’s request. Third. That the evidence clearly shows that the plaintiff and its agents (including Grinnell) were guilty of contributory negligence for which there can be no recovery. Fourth and Fifth. That the evidence clearly shows that the injury complained of was caused by the intervening and superseding negligence of Grinnell, and that the alleged negligence of petitioner was not the
A municipal corporation is not liable for the failure to exercise, or for the negligent or improper exercise of its governmental, legislative or discretionary powers, nor is it liable for the ultra vires acts of its servants. But for failure to exercise, or for negligence in the exercise, of those powers'and privileges which are conferred upon it for its private advantage, usually called proprietary or ministerial, the municipality is liable in the same manner as a private individual. Jones v. Williamsburg, 97 Va. 722, 34 S. E. 883, 47 L. R. A. 294. This was very properly conceded by counsel for the defendant in error. It was also conceded that the organization and operation of a fire department for the extinguishment of fires is a governmental function for the defects of negligent operation of which the municipality is not liable, and, furthermore, that it is not liable for the loss or destruction of buildings because of an inadequate supply of water, or for a failure to extinguish fires. It is unnecessary, therefore, to cite cases on the subject.
But the operation of a water department for the purpose of supplying water for domestic and commercial purposes is a private or proprietary right, and for negligence in such operation a municipality is liable in like
In 19 R. C. L., page 1130, the law on the subject in succinctly stated, and many cases, supporting and illustrating the text, are cited. It is there said: “A characteristic example of a function undertaken by cities and towns in their priviate or proprietary capacity is the distribution of water to their inhabitants for domestic purposes. Such a function is one that is often performed by private water companies, and when assumed by a municipal corporation it is a purely commercial transaction between the municipality as a dealer and the citizen as a customer. While an ample supply of fine water doubtless enhances the public health, this result is merely incidental, and the primary object of a city or town in securing a water supply is to increase the comfort and convenience of its own inhabitants. It is accordingly well settled that a municipal corporation is liable for the negligence of its employees in connection with its water department to the same extent as a private company. The mere fact that a municipal corporation uses its water works system for the extinguishment of fires as well as for. the distribution of water for domestic purposes, does not exonerate it from liability for an injury arising from negligence in the management of its water works not directly connected with the extinguishment of fires.” To the same effect, and citing many other cases, see McQuillin Mun. Corp., page 5414; 24 A. L. R., at page 545; Wigal v. City of Parkersburg, 74 W. Va. 36, 81 S. E. 558.
The following cases in this State, though not directly in point, bear upon the liability of municipal corpora
Counsel for the city of Richmond seek to avoid the effect of the authorities cited by arguing that furnishing water for a sprinkler system belongs to the fire department of a city and not to its water department. The negligence alleged and proved was the ministerial act of an employee of the city water department in failing to cut off the water. That department, and not the fire department, was charged with the duty of cutting off the water, and it was through the negligence of an employee of that department that it was not cut off.
The suggestion is also made that the object of the sprinkler was to prevent fires, and that the public was interested as well in preventing fires as in extinguishing them after they have started; that no charge was made for the water used by the sprinkler in extinguishing fires, and hence the act of the city in furnishing water to the sprinkler should be classed as a governmental act in like manner as the acts of the fire department. But the interest of the public was too remote to justify such a classification. All water on premises is some protection against the spread of fire, and in many of the large buildings there are stand pipes, several inches in diameter, with hose attached, and running to the tops of the buildings, and yet it has not been suggested that they constitute any part of the fire apparatus of the city. They are put there and maintained for the
In Keystone Investment Co. v. Metropolitan U. Disstrict, 113 Neb. 135, 202 N. W. 416, 37 A. L. R. at page 1509, speaking of the private nature of sprinklers, it is said: “The evidence shows that the standpipe and
automatic sprinkler systems installed in the larger buildings afford an added measure of Are protection to the owners and occupants of such buildings as is not enjoyed by the public at large, and is not enjoyed by the property owners in whose buildings such systems are not installed; that the installation of such private systems of fire protection lessens the cost of fire insurance on such buildings and on their contents to an amount equal to or in excess of the charge of defendant for standpipe service, and that such added fire protection makes offices in the buildings more desired by tenants, and enhances the rental value of such buildings.”
The object of the installation of the sprinkler was the private benefit to be obtained by the plaintiff and not to aid the city in preventing or extinguishing fires. The work to be done, in the instant case, appertained to the city water department, and the negligence proved was that of an employee of that department. The city, therefore, cannot defend on the ground that the negligence occurred in the exercise of a governmental power.
In the light of the facts stated, it is unnecessary to comment at any length on the position taken by the city that it was not negligent. The use and operation of the water pipe's in the city streets were under its exclusive management and control. No one could cut off the water from the city mains except the city, or those authorized by it. The city knew, or ought to have known, the location of its pipes. It was asked to cut the water off from the pipe which supplied Warehouse A, and the reason for the request was explained to it. It undertook to do so, but failed. Whether or not this was negligence on the part of the city was submitted to the jury upon instructions as favorable to the city as it could expect, and the jury found that the city was negligent. There was abundant evidence to support the verdict.
The city further denies liability on account of contributory negligence of the plaintiff. The contributory negligence, in part, is stated as follows: “When plaintiff furnished the equipment necessary to the installation of the sprinkler system in Warehouse A, said equipment was of such character that the valve was located adjacent to petitioner’s main instead of near the curb
“Similarly, when plaintiff procured permission to extend the service from A across the street to B, it violated chapter 31, section 10, Richmond City Code of 1910, by locating the shut-off valve to this extension in front of Warehouse A instead of in front of Warehouse B, and thereby created a situation which must inevitably exonerate petitioner from the charge of negligence or else convict plaintiff of contributory negligence.”
The record clearly shows that the city did the original installation of the service pipe, valves, meters and covers. The plaintiff was required to pay the costs but the city was to do the work, so that if there was any misplacing of valves, cut-offs or covers, it was the city’s fault. Section 3 of its own rules and regulations provides that “The superintendant of water works shall have the pipe and its connections made, so far as they are located in the street, and cost of such work shall be paid by the applicant for any such special service. The size of any such connection shall be subject to the approval of the superintendent of water and the committee on water.” Section 4 provides that, “All valves for the control of such connections shall be located in such positions that they can be operated outside the premises.”
Section 8 provides that, “The location of all special pipe connections, the size of the pipe, the proper kind and location of all valves, meters, etc., and the class of all materials to be used is subject to the approval of the superintendent of water works and the committee ón water.” (Italics ours.)
The contributory negligence really relied on by the city as exempting it from liability was the failure of the Grinnell Company “to make the simple test to-ascertain if the water had been effectually cut off.” It is argued that the Grinnell Company was the agent, of the plaintiff, and, if so, its negligence was the negligence of the plaintiff, but, if not agent, it was an independent contractor, and, if so, its superseding and intervening negligence was the proximate cause of the injury, and the city was not liable.
It is clear from the evidence that the Grinnell Company was an independent contractor for whose negligence, under the facts of the case, the plaintiff was not liable to the city, and this feature of the case may be dismissed from further consideration.
[(10] The other feature of this assignment presents the novel proposition that the Grinnell Company was negligent because it failed to accept as true the city’s own statement of a fact about a matter peculiarly within its knowledge. The city is estopped from setting up such a defense. It is an effort to set up a “last clear chance” doctrine, when the Grinnell Company did not know and was not chargeable with knowledge that the statement of the city’s employee was untrue. The city was chargeable with knowledge of the location of its water pipes. It was asked to cut the water off from Warehouse A, and knew for what purpose it was to be
It is assigned as error that the trial court rejected a special plea of release tendered by the city. This plea is based upon an ordinance of the city adopted when permission was granted the plaintiff to extend its sprinkler service across Cary street from Warehouse A to Warehouse B, and is as follows: “Said permission is granted subject to the condition that said Virginia Bonded Warehouse Corporation, or any subsequent owner of the factory now erected, will indemnify, reimburse and save harmless the city of Richmond from any charge, damage or cost that the city may be required to pay by reason of any person being injured or damaged in any way, in property or person, by the laying, existence or use of said pipes.”
The line from which the city was asked to cut off the water was the line connecting the water main in Cary street with Warehouse A, totally unconnected with the line from Warehouse A to Warehouse B, and the ordinance' quoted was irrelevant to the question at issue. Furthermore, if there was any confusion as to
The Virginia Bonded Warehouse Corporation has assigned as error the refusal of the trial court to set aside the verdict of the jury as to the Grinnell Company, Incorporated, as without evidence to support it, and the rulings of the trial court on instructions.
There was abundant evidence to support the verdict, and the trial court could not, with propriety, have set it aside for lack of such evidence. On this question, the Warehouse Company is here as on a demurrer to the evidence by it, and every inference which a jury might have fairly drawn from the evidence in favor of the Grinnell Company must be drawn by this court. Even upon the testimony for the plaintiff, the verdict in favor of the Grinnell Company could not be set aside.
Hoadley, president of the warehouse company, testified as follows:
“Q. Now when they were ready to make the connection in Warehouse A with the supply pipe, after they had completed, as you said, the installation of the other portions of the system, what did they do and what did you do?
“A. Their foreman came over to the office and told me that they were ready to make the connection in the sprinkler room, which required shutting off the water by the city, and would I arrange with the city to have
“Q. Who is Mr. Carter?
“A. Superintendent of the warehouse.
“Q. Your superintendent?
“A. Mine.
“Q. You told him to report what the city did to the Grinnell Company, did you?
“A. Exactly.”
He further testified that, when everything was ready to make the connection, the foreman of the Grinnell Company came over and asked him to make the necessary arrangement with the city to cut the water off, and that, in reply to that request, he said “All right and did it.” He informed Carter, his superintendent, of the arrangement made with the city for cutting the water off and told him that when the city men came down on Monday and reported that the water had been turned off to report the fact to the Grinnell people so that they could go on with the work, and Carter says that when the city people reported to him that the water had been cut off and that they could go ahead and make the connection, he told the foreman of Grinnell Company, “that the city people said they had cut the water off and to go ahead and make his connection.” The foreman of the Grinnell Company, relying upon this information, proceeded to make the connection, which resulted in flooding the warehouse because the city water had not in fact been cut off. It was not customary to make any test to prove the truth of the statement of the city people that the water had been cut off, and no such test was made. The city alone had the right to turn the water off and on the city main, and Hoadley says that he “relied on the city to turn the water off.” He made no suggestion to the Grin
The Grinnell people contracted to do the expert work in an expert manner, and did it. There is no complaint on this score. The sole complaint is that it did not make any test to ascertain if the report of the city employee was correct. It is conceded that such a test could have been made, and that, if it had been, it would have disclosed the fact that the water had not been cut off. But where such a test is not required either by custom or by contract, it is not necessary. In the instant case, it was not required by contract, and the evidence is that it was not customary to make it. When everything was ready to make the connection, the Grinnell people did not assume the responsibility of having the water cut off, but informed the president of the warehouse company of the situation, and asked him to have it cut off, and he assumed the responsibility of having it done. He “relied on the city to turn the water off” and the Grinnell Company relied on the report of his superintendent that the city people said “they had cut the water off and to go ahead and make his connection.” • This was all the care required of the Grinnell Company. It was not required to exercise meticulous care, but only ordinary care.. The city alone had the right to cut the water off, and when its employees reported the water had been cut off, the Grinnell Company had the right to rely upon that report. Business could not be conducted if every one had to act only on personal knowledge of every fact that entered into the basis of his action, or if «he had to test or verify the correctness of statements or reports which came from a proper and reliable source.
We are of opinion that under correct instructions
We find no error in the judgment of the trial court, either as to the city of Richmond or the Grinnell Company, Incorporated, and it will be affirmed.
A firmed.