139 Ind. 214 | Ind. | 1894
The appellant brought this action against the _ Seymour Water Company, charging that he was a citizen and taxpayer of the city of Seymour; that the defendant company was supplying the city with water under a contract which provided that the company “shall constantly, day and night, except in cases of unavoidable accident, keep all of the city hydrants supplied with water, and upon receiving a fire alarm, shall at once furnish sufficient pressure for fire service, not, however, to exceed one hundred pounds to the square inch, and shall keep the fire hydrants in good working order and efficiency for fire service;” and was paid at the rate of fo.ur thousand dollars per year for the use of one hundred fire hydrants by the city of Seymour; that the appellant, Fitch, was the owner of a building used by him for the manufacture of chewing gum and other articles, and on November 23, 1891, this building was destroyed by fire, with-its contents, belonging to Fitch, of the value of more than twenty thousand dollars; that the city of Seymour had, in all things, fulfilled its contract with the Seymour Water Company as to the payment of rent and other requirements, and that “defendant had machinery, water mains, pipes and hydrants of sufficient capacity and power to have furnished water in
The defendant demurred to the complaint, and its demurrer was sustained, and, on plaintiff’s refusal to amend, judgment was rendered in favor of defendant, and the plaintiff appealed to this court.
The appellant contends that, under the facts pleaded and the ordinance, “the relation between the city of Seymour and the defendant was not in the nature of a contract, but was a franchise granted to the defendant by the common council under the powers conferred upon it by the constitution and the laws of the State, and, therefore, has all the binding force of a law, and is, in effect, a statutory enactment.”
And that “The obligation of the defendant, therefore, under this ordinance, to the city of Seymour and its inhabitants was not one of contract, but was an obligation created by law, and the duty of the defendant to the city and the inhabitants, including the plaintiff, was a public duty, and one for any breach of which resulting in damage either to the-city or its inhabitants (to the plaintiff in the case), the defendant would be liable for such damage.”
The appellee holds that “The question is whether water companies, operating under contracts with cities, by which they agree to furnish sufficient water for fire protection, owe such a duty to inhabitants of the cities as to give the inhabitants a right of action against the water company for fire losses occurring through an insufficient supply of water.”
And concludes that “The breach of a contract by a water company to furnish water to a municipality for the extinguishment of fires gives the citizen whose property is destroyed by fire no right of action against the water company.”
But the ordinance in question is not a police regulation, nor one which the municipality was under obligation to enact or enforce. Under the statute the city had a right to enact an ordinance for protection against fire; but it was not bound to do so. In enacting the ordinance the municipality moved in its governmental capacity, in the general interests of the community. As a means to attain its object, the city contracted with the company for a water supply.
The ordinance, therefore, in so far as the inhabitants of the city and public interests, generally were concerned, was a governmental measure which the city might take or not take, as seemed best; and no liability existed against the city for a failure to enact the ordinance, or for a failure to see that it was duly enforced. There could, then, be no public duty under the ordinance, the violation of which would render the city or those appointed to carry out the provisions of the ordinance liable to any one who might suffer. This, we think, follows from our decisions. Brinkmeyer v. City of Evansville, 29 Ind. 187; Robinson v. City of Evansville, 87 Ind. 334; City of Lafayette v. Timberlake, 88 Ind. 330; Summers v. Board, etc., 103 Ind. 262.
In a like case, that of Davis v. Clinton Waterworks Co., 54 Iowa, 59, the court said: “The city, in 'exercise of its lawful authority to protect the property of the people, may cause water to be supplied for extinguishing fires and for other objects demanded by the wants of the people. In the exercise of this authority it contracts with defendant to supply the water demanded for these purposes. The plaintiff received benefits from the water thus supplied in common with all the people of the city. These benefits she receives just as she does other benefits from the municipal government, as the benefits enjoyed on account of improved streets, peace and order enforced by police regulation, and the like. It can not be claimed that the agents or officers of the city employed by the municipal government to supply water, improve the streets, or maintain good order, are liable to a citizen for loss or damage sustained by reason of the failure to perform their duties and obligations in this respect. They are employed by the city, and responsible alone to the city. The people must trust to the municipal government to enforce the discharge of duties and obligations by the officers and agents of that government. They can not hold such.officers and agents liable upon the contracts between them and the city.” See, also, Becker v. Keokuk Waterworks, 79 Iowa, 419.
In Fowler v. Athens City Waterworks Co., 83 Ga, 219, the court said: “It was held in Willey v. Mulledy, 78
In Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky. 340, a contrary view is taken; but while the
We think that under the facts of the case at bar the water company had undertaken no public duty which would make it liable to appellant, and also that appellant had no privity in the contract of the city with the company.
The judgment is affirmed.