Freeman v. Macon Gas Light & Water Co.

| Ga. | Nov 16, 1906

Evans, J.

(After stating the facts.) When a private corporation undertakes to supply water to a municipality and its inhabitants for toll, it enters upon a public service. 1 Farnham on Waters & Water Rights, § 162. The business and purpose for which a water-supply company is incorporated are of such a public character as to make it a quasi public corporation. City Water Co. v. State (Tex.), 33 S. W. 259; Foster v. Fowler, 60 Pa. St. 27. In order to effectually carry out its purposes, valuable franchises in the use and occupation of the city’s streets and alleys are granted, and the corporation assumes the obligation of giving adequate service to the public at large. These features of its business stamp its character as a public-service corporation, and it will be liable as such in the conduct of its undertaking, under a contract authorized by a statute of the State, to supply the city and its inhabitants with water. In its general characteristics a water company which accepts a franchise conferring upon it the right to use the city’s streets, on condition that it will serve the public bjr furnishing the necessary water supply, may be likened to a street-railway corporation to which has been granted a franchise to occupy the streets of the city and engage in transporting passengers for hire. Each would owe certain duties to the public and would become liable to an individual for its failure to perform, to his injury, service which it was under a duty to render to him as a member of the general public. Eor a breach of its public duty the injured party could recover nominal damages, or, if the circumstances so warranted, punitive damages, and also such special damages as might proximately flow from the breach and were sustained by him

What we have just said in no way conflicts with the principle decided in Fowler v. Athens Water-Works Co., 83 Ca. 219. There the water company was sought to be held liable to a private citizen because of a failure to perform a duty owing to the municipality, under a contract with it to furnish it an adequate supply of water for fire protection. The city, in the exercise of its governmental functions, undertook to afford its citizens adequate fire protection— not by itself laying mains and maintaining a water supply plant, but by hiring one Eobinson to do so. No franchise of any kind was granted to Eobinson, nor did he in any way obligate himself to serve the public at large; and it was not contended that the municipality had any power under its charter, by way of contract or otherwise, to impose upon him any public duty towards its inhabitants. Accordingly, the decision in that case was put upon the ground that there was no privity of contract between the plaintiff and the assignee of Eobinson (the Water-Works Co.), and that, in the absence of statutory provision, the contract made with the city raised no public duty towards any of its inhabitants to furnish an adequate supply of water for fire protection. In the present case it affirmatively appears that the contract relied on by the plaintiff was made in pursuance of express authority conferred by the legislature upon the municipality to grant a franchise upon certain terms, one of which was that private consumers should be furnished water at rates to be fixed by the city in the contract with the Macon Gas-Light and Water Company. (See amendment to charter, Acts of 1890-91, p. 573, see. 14.) The Water Company, by entering into the contract which the General Assembly authorized the city to make with that company, accepted the privilege of supplying the citizens of that city, as such, with water upon certain terms, and became a public-service corporation with an express statutory duty to perform. This duty the company owed to every private consumer of .water, independently of any contract duty it owed to the municipality itself, considered as a municipal corporation engaged in the discharge of governmental functions. For a breach of this statutory duty the company could be held liable in tort by the aggrieved member of the public, though he was no party to the contract between the city and the Water Company. A private person may not only sue a public-service corporation for a breach of duty owing to him, but he may by mandamus even enforce the performance by the corporation of its public duty as to matters in which he has a special interest. Savannah Canal Co. v. Shuman, 91 Ga. 400.

The petition as amended set forth a cause of action sounding in tort, and the particular tort alleged was a wilful breach by the defendant company of a public duty which it owed to the plaintiff as a consumer of the water it undertook to supply to the inhabitants of the city. The suit is not based on the contract between the water company and the city; this contract is simply alleged by way of inducement, for the purpose of establishing the nature •and scope of the duties and liabilities of the company relatively to the general public. It is clear, therefore, that the action should not have been dismissed upon general demurrer.

The objection raised by special demurrer to the allegation that the water company had a monopoly in its business of supplying the public with water was without merit. The term "monopoly” was not used in any offensive sense, or with the purpose of insinuating that the company was not conducting a legitimate business, but with a view to setting forth the pertinent fact that the company had the exclusive privilege of supplying the city and its inhabitants with water, and for this reason the plaintiff was wholly dependent upon the company for his supply of water. The assertion that the company cut off his supply "without legal cause” was an allegation to the effect that the company, without any justification, wrongfully discontinued to serve him; it was not a mere conclusion of law, nor was the plaintiff under any obligation to elaborate Ms pleadings as to this matter. In the absence of an averment that the defendant knew that another member of the plaintiffs family was ill at the time the water was cut off, this fact could not be relied on by the plaintiff as an aggravating circumstance connected with the wrong complained of; nor was it pertinent that the action .of the company imperilled the health and lives of his entire household, the plaintiff having no right to damages for any -injury or inconvenience the members of his family may have suffered, independently of that he sustained as a consumer in being deprived of his means of providing himself and his household with water for domestic uses. To this extent the special demurrer was properly sustained. It was not, however, incumbent on the plaintiff, as the defendant urged by way of special demurrer, to specifically state the manner in which he computed his damage to be in the amount sued for.' All a pleader is required to state are the facts-upon which he relies for recovery, when general damages are claimed; though, when special damages are averred, it is necessary for him to specify the particular items for which he sues. From the very nature of things, general damages are incapable of segregation into different items. In his amendment the plaintiff did allege special damages in the sum of one dollar, the cost of restoring the water connection. And in all other respects the amended petition met the special objections pointed out in the demurrer, in so far as these objections were well taken.

Judgment reversed.

All the Justices concur.