Krom v. Antigo Gas Co.

154 Wis. 528 | Wis. | 1913

Lead Opinion

Tbe following opinion was filed February 18, 1913:

WiNSLow, O. J.

It is very certain that the complaint states a good common-law cause of action for negligence against the gas company, and the only question which we find it necessary to consider upon this appeal is the question whether a cause of action is stated against the water company.

In the case of Britton v. Green Bay & Ft. H. W. W. Co. 81 Wis. 48, 51 N. W. 84, this court held, after full argument and mature consideration, that at common law there was no liability on the part of a water company in such a case. It was recognized in that case that the question was one upon which there was not entire unanimity of opinion in the courts, but it was deemed that the doctrine of nonliability to the individual property owner in such a case was supported by the greater weight of authority and was the more reasonable and logical. We recognize the fact that since that decision two state courts have met this question and have come to the opposite conclusion: Gorrell v. Greensboro W. S. Co. 124 N. C. 328, 32 S. E. 720; Mugge v. Tampa W. W. Co. 52 Fla. 371, 42 South. 81. See generally on this question, note to State v. Gosnell (116 Wis. 606, 93 N. W. 542) 61 L. R. A. 33, on pages 96, 97, and 98; also German Alliance Ins. Co. v. Home 17. S. Co. 226 U. S. 220, 33 Sup. Ct. 32. Whatever might be our conclusion on the question were it presented now for the first time in this court, we do not think that we would be justified in changing the rule of liability laid down in the Britton Case. That rule was announced more than twenty years ago. Many water companies in this state have organized and erected plants at large cost and gone into business since that time. They were entitled to regard that very important question as settled by the decision in. the Britton Case, and doubtless did so regard it. Their investments may truly be said to have been made in reliance upon that decision. In every practical sense it has become a rule of property which if disturbed at - all should be disturbed only by.legislative action.

The appellants claim in this .case_that it has been so changed, and this claim presents the most serious question which we meet in the case. Two sections of the Public Utilities Law are relied on as accomplishing this result, namely, éec. 1197m — 3 and sec. 1797m — -93, Stats.

The first named of these sections provides that “Every public utility is required to furnish reasonably adequate service and facilities,” and the second provid.es that “If any public utility shall do or cause to be doné or permit to be done any matter, act, or thing in sections 1797m — -1 to 1797m — 109, inclusive, prohibited or declared to be unlawful, or shall omit to do any act, matter or thing required to be done by it, such public utility shall be liable to the person, firm or corporation injured thereby in treble the amount of damages sustained in consequence of such violation; provided, that any recovery as in this section provided, shall in no manner aflect a recovery by the state of the penalty prescribed for such violation.”

The first section named is plainly declaratory of the common law and adds nothing to the obligations of persons or corporations who, having received legislative authority to carry on the business of a public utility, undertake to do so.

Such persons and corporations have always been under a legal duty to furnish reasonably adequate service at reasonable rates and without discrimination to all who are entitled to apply for service. Shepard v. Milwaukee G. L. Co. 6 Wis. 539; Munn v. Illinois, 94 U. S. 113; Kennebec W. Dist. v. Waterville, 97 Me. 185, 54 Atl. 6, 60 L. R. A. 856; Madison v. Madison G. & E. Co. 129 Wis. 249 (108 N. W. 65), and cases cited in that ease on page 265.

The effect of the second section cited presents, however, a more difficult question. The legislature, having by the first named section incorporated in the law a specific requirement that reasonably adequate service shall be furnished, now provides, by the second named section, that if any public utility “. . . shall omit to do any act, matter or thing required to be done by it, such public utility shall be liable to the person, firm or corporation injured thereby” in treble damages, in addition to any penalty owing to the state.

The question whether the legislature intended by these words to substantially add to or enlarge the limits of liability laid down in the Britton Gase must, we think, be answered in the affirmative. That case in substance held that there could be no recovery by the individual whose property had been destroyed on account of the negligent failure of a water company to furnish a sufficient supply of water, because there was no contract relation between the individual and the utility, and hence no duty owing and no breach of duty. The section under consideration makes no mention of contract rights, and with apparent industry bases a liability on two facts only: (1) omission to perform a duty imposed by the act (no distinction being in terms made as to the party to whom the duty is primarily owing), and (2) injury thereby to some person, firm, or corporation. The use of the word “injured” in this connection has some degree of significance. Had the word “damaged” been used, the argument that there was no intention to extend the former rule would be stronger, for damage technically means loss resulting from an actionable wrong, whereas injury carries no necessary implication of such a wrong. The use of the word “injured,” therefore, seems to indicate an intentional departure from the idea of legal damage as an essential to a recovery and the substitution therefor of actual injury resulting from any neglect of duty by the utility, whether the duty neglected was one owing to the plaintiff or to the municipality at large. '

Our conclusion upon this preliminary question brings us to the last question which we find it necessary to consider in the case, namely, the question whether by the last named section all acts and omissions in violation of the utilities law, however trivial and unintentional, are to be punished by the imposition of treble damages, in addition to a criminal penalty, or whether only wilful acts and omissions are so to be punished. The law nowhere contains- the word “wilful,” and it is strongly urged that if we construe it to cover only wilful acts, and act's which by reason of their wanton or reckless character are legally equivalent to wilful acts, we shall be construing words which are so plain as to prohibit construction, and thus in effect encroach on legislative powers. This argument would possess much strength were it not for the fact that this court, in a series of decisions commencing many years ago, has construed similar statutes highly drastic and penal in their nature as not covering acts or omissions resulting from mere inadvertence or excusable neglect. Thus in Cohn v. Neeves, 40 Wis. 393, a statute providing for the recovery of treble damages against any person who should* convert to his own use without consent of the owner any logs, timber, etc., floating in any of the waters of the state or lying on the banks, was held, in view of its highly penal character, as only intended to apply “to a conversion where there was some element of wilfulness, wantonness, or evil design in the act.” It was also said in that case that the law “by way of punishment subjects the wrongdoer in certain cases to an extraordinary liability for the property of another appropriated to his use. In some cases the conversion may be merely a technical one in law, arising from accident, mistake, or even carelessness, without any evil design, and where the damages recoverable at common law afford .an adequate compensation to the party injured. We can hardly think such a case was within the contemplation of the legislature.” In that case reliance was placed on the case of Wallace v. Finch, 24 Mich. 255, where a similar statute had been similarly construed.

Again in Schumacher v. Falter, 113 Wis. 563, 89 N. W. 485, and Johnson v. Huber, 117 Wis. 58, 93 N. W. 826, statutes providing penalties for refusal to discharge mortgages and judgments were respectively held to apply only to wilful refusals, although neither the word “wilful” nor any equivalent word was used in the act itself. So also in the case of State v. Railway Cos. 128 Wis. 449, 108 N. W. 594, a section of the law which provided that any railroad company which should neglect to pay its license fee “or any part thereof” should absolutely forfeit to the state the sum of $10,000, and also stand liable to forfeit all of its rights under the laws, was held not to cover an excusable or honest mistake in making returns either of law or fact or both, but only to an inexcusable failure.

The statute before us is highly penal in its nature. We think the legislature could hardly fail to realize its almost criminal character. The Public Utilities Law was not the product of a single brain, nor was it struck off at a moment’s notice, but bears marks of careful thought, examination, and deliberation by many minds. It can hardly be supposed that its framers did not know of the principle acted upon by this court for nearly or quite thirty years in the construction of such highly penal laws, and it must be presumed, we think, that they enacted the present section with that established principle of construction in mind, and hence considered it unnecessary to further signify their purpose to provide thereby a punishment for acts and omissions in which there was some element of wilfulness, wantonness, or reckless disregard of duty. For such acts or omissions it's provisions are eminently suitable; for errors of honest judgment or unintentional and excusable neglects they are not only not suitable but unnecessary in the many cases where there is a common-law liability to patrons for negligent failure to render adequate service, causing legal damage to the patron.

The legislature must have known also that some cities of the state already owned their own water plants, and that the number of such cities was on the increase, and they could ■hardly fail to have in mind the fact that any single conflagration in even the smallest of our cities might easily cause a loss which when multiplied by three would impose a staggering debt upon the municipality, from the burden of which it could not escape for many years. If the plaintiffs’ contention is sustained, it must be on the theory that it was intended to place that crushing burden not only on the water companies of the state, but also on the municipal corporations which own and operate their own waterworks, in every case where by the carelessness or inadvertence of an employee the water pressure falls short for a brief time at the incipient stages of a destructive fire, or some other temporary default occurs on the part of a subordinate employee from which a jury might find a failure to furnish reasonably adequate service in the early moments of the fire.

Viewing the statute in the light of the decisions, we do not feel that we can do otherwise than construe it as a statute covering only wilful breaches of duty, or, as expressed in the (John Case (40 Wis. 393), a breach in which there is “some element of wilfulness, wantonness, or evil design.”

As we view the complaint there is no such breach charged against the water company here, and hence no cause of action is stated against the water company, and there is no improper joinder of causes of action.

By the Court. — -The order sustaining the demurrer of the defendant gas company is reversed with costs, and the order sustaining the demurrer of the-defendant water company is affirmed with costs, and the action is remanded for further proceedings according to law.

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Concurrence Opinion

TimliN, J.

(concurring). The pivotal question in this case is whether the rule of nonliability established by Hayes v. Oshkosh, 33 Wis. 314, and Britton v. Green Bay & Ft. H. W. W. Co. 81 Wis. 48, 51 N. W. 84, and approved many times since has been abrogated or modified as regards water companies by the enactment of sec. 1797m — 3, Stats., which requires every public utility to furnish reasonably adequate service and facilities, sec. 1191m — 1, wbicb includes such water companies under the name “public utility” and declares that the term “service” found in the statute is used in its broadest and most inclusive sense, and sec. 1191m — 93, which provides that: “If any public utility shall do or cause to be done or permit to be done any matter, act or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter or thing required to be done by it, such public utility shall be liable to the person, firm or corporation injured thereby in treble the amount of damages sustained in consequence of such violation.”

The complaint seeks t'o hold the water company and others for damages by fire to the owner of property, and certain insurance companies having policies thereon, on the ground that the water company negligently failed to furnish reasonably adequate service and facilities for fire protection. I think without the aid*of the statute above mentioned the complaint states no cause of action against the Antigo Water Company under the law as-settled in this state by the decisions referred to and in harmony with at least the numerical weight of judicial authority elsewhere. German Alliance Ins. Co. v. Rome W. S. Co. 226 U. S. 220, 33 Sup. Ct. 32; Hone v. Presque Isle W. Co. 104 Me. 217, 71 Atl. 769, 21 L. R. A. n. s. 1021; Ancrum v. Camden W., L. & I. Co. 82 S. C. 284, 64 S. E. 151, 21 L. R. A. n. s. 1029; Woodbury v. Tampa W. W. Co. 57 Fla. 243, 49 South. 556, 21 L. R. A. n. s. 1034.

The cases absolving water companies from liability for damages caused by accidental fire, where the water company failed to supply sufficient water, went somewhat upon the enormity of the damages which might thus be imposed upon water companies. It is quite remarkable that, after acquiescing nearly twenty years in the rule of the Britton Case, supra, during a period of great legislative activity in which tiie legislature of tbis state bas not hesitated at making express and sweeping changes, there should be a statute enacted by the legislature intended not only to change the existing rule by implication but to impose treble damages upon the, water company. The change from a legal condition in which it was held that the enormous damages which might result from a great conflagration were not within contemplation of the parties seeking or granting a franchise for the supply of water in a city to a condition in which the water company should be held for three times such damage, is not apt to steal upon us unnoticed or to be established by mere implication. Aside from this, in a statute authorizing the fixing and regulation of reasonable rates for water service by such companies there is some incongruity in imposing a burden upon the water company which would necessitate either the carrying of enormous insurance by the water company or the carrying of an enormous additional risk which must often drive the water company into bankruptcy or require a large advance in its water rates to meet this added expense or this added risk. The losses caused by accidental fires or negligent fires are usually covered by insurance procured by the owners of the property destroyed, and the insurance is computed and adjusted so that the shock of loss is dissipated and distributed among and upon all who pay premiums to the insurance company or insurance companies interested. The construction of the statutes quoted and referred to, contended for by appellants, would make the water company liable to the owner and the insurance companies for such loss in all cases in which the water company might be found negligently remiss in its duties and thus the statute would make a radical change in existing economic conditions. Again, it is unusual and extraordinary, if not unprecedented, to impose treble damages for mere negligence where there is no malice or contumacy and the amount of damage is otherwise large.

Under such circumstances I do not think we would he justi-lied in saying that these statutes create a new duty to the person whose property is destroyed by accidental fire. The statutes may have enlarged the duties of the water company, but they have not changed the persons to whom the duties are due. Such company is required to furnish reasonably adequate services and facilities. But to whom ? I think to the same persons to whom it owed the duty at the time of and prior to the enactment' of this statute, — to the municipality in furnishing water for hydrants, public drinking, flushing, and bathing places, and for the extinguishment of fires, in short for aid in the performance of its governmental functions; to consumers who contract with it for all the other usual purposes. There is no duty cast upon the water company by common law or express statute to furnish water for extinguishing fires to any person other than the municipality. Under the statute quoted the municipality is injured but not damaged by the failure of the water company to furnish water for this purpose. The individual consumer is damaged but not injured by the same failure. Consequently the city must redress its injury by some legal proceeding other than the recovery of damages, and as to the individual consumer the act or omission of the water company in this respect is damnum absque injuria. Liability for damages caused by negligence is to the person to whom by law some duty of diligence is due. So that without anything more than a statute which declares that the company shall furnish adequate service and a statute declaring that for failure to do this the company shall be liable to the person injured in treble the amount of damages sustained, we have nothing to change the former law pointing out the person to whom service is due, and only such person is injured. In this opinion I use the word “injury” in its legal sense as contradis-tinguished from mere loss or damage. I also think this provision for treble damages indicates that the statute has reference to the duties due to consumers of water in which the amount of damage by delinquency is often small but annoying to tbe consumer, and' tbis statute is to discourage sucb derelictions and partially recompense the'consumer for being obliged to bring a suit for sucli sifiall amount. .

I do not think tbe statutes in question are potent to impose a liability upon tbe water company on account of inadequate service for damages occasioned by accidental fire, and consequently that tbe law as formerly established should prevail.

But for tbe same reasons here given for absolving tbe water company from liability, namely, that tbe duty to furnish adequate water service for use in tbe extinguishment of fire was a duty due to tbe municipality and not to tbe property owner, tbe gas company must be held liable. There is as to it set forth tbe negligent omission of a duty owing by tbe gas company directly to tbe patron or consumer with which it contracted and upon whose premisiss it installed its apparatus. Tbe order sustaining tbe demurrer of tbe water company was properly made. Tbe order sustaining tbe demurrer of tbe gas company is improper, and there is no misjoinder because there is only one cause of action stated in the complaint.

A motion by tbe appellants for a rehearing was granted on May 14, 1913, and tbe cause was reargued on September 20, .1913.

To the point that tbe word “injured” in tbe law necessarily means and implies “actionable wrong,” counsel for tbe respondent Antigo Water Company cited Bouvier, Law Dict.; Anderson, Law Dict.; Hitch v. Edgecombe Co. Comm’rs, 132 N. C. 573, 44 S. E. 30; Carstesen v. Stratford, 67 Conn. 428, 35 Atl. 276, 278; Springer v. J. H. Somers F. Co. 196 Pa. St. 156, 46 Atl. 370, 371; Macauley Bros. v. Tierney, 19 R. I. 255, 33 Atl. 1, 37 L. R. A. 455; Broughel v. Southern New Eng. T. Co. 73 Conn. 614, 48 Atl. 751, 754; Brown v. Kendall, 60 Mass. (6 Cush.) 292; Brittle S. Co. v. Rust, 10 Colo. App. 463, 51 Pac. 526, 529; West Virginia T. Co. v. Standard Oil Co. 50 W. Va. 611, 40 S. E. 591, 56 L. R. A. 804; Parker v. Griswold, 17 Conn. 288, 302—304; North Vernon v. Voegler, 103 Ind. 314, 2 N. E. 821, 824.

Tbe following opinion was filed October I, 1913:

WiNsnow, C. J.

While the reargument of this case has not convinced us of error in the result previously reached, it has convinced us of error in some of the reasoning in the opinion of the court. In that opinion it was in substance held that the utilities law had changed the rule in the Britton Case to this extent, namely, that if a private citizen suffered a property loss by reason of the wanton, wilful, or reckless failure of a public water company to furnish reasonably adequate fire protection, the company would be liable to such citizen in treble damages, notwithstanding the absence of contract relations between the company and the citizen, but would not be liable in any amount' in case the failure was the result of inadvertence or mere excusable neglect.

This result was based practically upon two primary considerations: (1) the use of the word “injured” in sec. 1797m — 93, Stats., which word was said to carry no necessary implication of an actionable wrong; and (2) the fact that the statute is highly penal in its nature, and hence must have been intended by the legislature to be applied only to wilful or wanton acts, in analogy to a line of cases beginning with Cohn v. Neeves, 40 Wis. 393.

We are now satisfied that both of these primary ideas are mistaken ideas, and the writer desires to assume the blame for these palpable mistakes so far as he may.

The word “injure” in its accurate and technical legal sense means to violate the legal right of another, or, what amounts to the same thing, to inflict an actionable wrong. This definition is sustained by all the authorities and law dictionaries. The word comes from the Latin words “in," meaning against, and “jus," meaning a right, and signifies something done “against tbe right” of another person, producing either nominal or substantial damage. Anderson’s Law Diet, title “Injury;” Black’s Law Diet, title “Injury;” 22 Cyc. 1064, title “Injury,” and cases cited innotes; West Va. T. Co. v. Standard Oil Co. 50 W. Va. 611, 40 S. E. 591, 56 L. R. A. 804.

Now if the word “injured”-is used in its accurate legal sense in sec. 1797™. — 93,- then no new liability is created by that section (except the liability for treble damages instead of single damages), unless in some other section of the law there be some provision giving to private property owners a right which they did not possess at common law under the principles of the Britton Gase. Substituting in place of the word “injured” its technical and accurate legal meaning, the section would provide that any. public utility which shall fail to furnish reasonably adequate service shall be liable to the person who suffers an actionable ^rong thereby in treble damages. So read, the section does not attempt to enlarge the list of actionable wrongs, and unless some other section of the law enlarges that list so as to include such a case as the present, it seems impossible to say that the list is enlarged at all. It was said in the former opinion that sec. 1797m— 3, which provides that every public utility shall furnish reasonably adequate service and facilities, is simply declaratory of the common law and adds nothing to the obligations of public utilities, and we are still of that opinion. We have found no other section which enlarges the list of actionable wrongs so as to include the supposed wrong in the present case.

While this result renders unnecessary the discussion of any other questions, it is deemed proper also to say that the position taken in the former opinion to the effect that sec. 1797m — 93 was intended to extend only to wilful, wanton, or reckless defaults seems entirely untenable. In many sections of the law, notably the sections immediately preceding'and the section immediately following sec. 1797m — 93, the legislature has provided for the punishment of large numbers of acts and defaults, and industriously differentiated between certain acts which are to be punished when committed wilfully or knowingly and certain others as to which no requirement that they shall be knowingly or wilfully committed appears. It is quite apparent, therefdre, that the legislature had the distinction in mind when the law was framed, and the idea that it intended only to cover wilful or knowing acts or defaults by the provisions of sec. 1791m — 93 seems entirely untenable.

In view of the unquestioned legal meaning of the word “injure,” the absence of any direct provision in the law indicating any intention to change the rule announced so many years ago in the Britton Case, the immense sums invested in public utilities of this nature in undoubted reliance upon the principles laid down in that case, and the tremendous liabilities which the law would impose on water companies, and cities operating their own water works as well, if construed as the plaintiff contends it should be construed, we hold that the rule of the Britton Oase is not changed nor'intended to be changed by the law. These conclusions necessitate no changes in the mandate.

By the Court. — The order sustaining the demurrer of the defendant gas company is reversed with costs, and the order sustaining the demurrer of the defendant water company is affirmed with costs, and the action is remanded for further proceedings according to law.