52 Fla. 371 | Fla. | 1906
(after stating the facts) : In view of the great importance of this case and of the conflicting views of the courts upon the question involved the facts set up in the declaration have been stated at some length, in order that they may be compared and contrasted with those given in the cases cited in the briefs, and to which we shall allude.
in the case of Nickerson v. Bridgeport Hydraulic Company, 46 Conn. 24 (the first American case bearing on the question), it was held: “Where a water company organized for the purpose of supplying the inhabitants of a city with water, contracted with the city to supply the city hydrants with water, and by their neglect to do so the fire department of the city was not able to extinguish a fire occurring in the city, it was held that the water company was not liable in damages to the owner of the property burned, for the neglect to supply the water.” An examination of the opinion shows that the court regarded the declaration as exceedingly defective, and as showing no such state of facts as appear in the case at bar.
The next American case is that of Davis v. Clinton
The following cases, and perhaps one or two' others, follow in time and are in line with these two, viz.: Wainwright v. Queens County Water Co., 78 Hun. 146; Nichol v. Huntington Water Co., 53 West Va. 348, 44 S. E. Rep. 290: Foster v. Lookout Water Co., 3 Lea (Tenn.) 42; Fowler v. Athens City Water Works Co., 83 Ga. 219; 9 S. E. Rep. 673; Wilkinson v. Light, Heat & Water Co., 78 Miss. 389, 28 South. Rep. 877; House v. Houston Water Works Co., 88 Texas 233, 31 S. W. Rep. 179; Ferris v. Carson Water Co., 16 Nev. 44; Bush v. Artesian Hot and Cold Water Co., 4 Idaho 618, 43 Pac. Rep. 69; Ukiah City v. Ukiah Water & Imp. Co., 142 Cal. 173, 75 Pac. Rep. 773, S. C. 64 L. R. A. 231; Fitch v. Seymour Water Co., 139 Ind. 214, 37 N. E. Rep. 982; Britton v. Green Bay & Ft. H. Water Works Co., 81 Wis. 48, 51 N. W Rep. 84;
In the case of Britton v. Green Bay & Ft. H. Water Works Co., supra, the contract required the company to supply said city and the inhabitants thereof with water for public and private uses, for public and private consumption and for putting out fires. It was held that there was no contract between the water company and private individuals; that the water company was bound by its contract to the city alone; that the company was not required by law to furnish water to put out fires, and assumed no such duty to the public by its contract; that it contracted to do so, not because it tosa its duty to the public, but because it deemed it profitable to itself, and was willing to be thus bound by its voluntary contract. But the doctrine of these cases has not met with universal acceptance. It has been repudiated in Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky. 340, 12 S. W. Rep. 554; 13 S. W. Rep. 249; Duncan v. Owensboro Water Co., 12 Ky. L. Rep. 824, 15 S. W. Rep. 523; Graves County Water Co. v. Ligon, 112 Ky. 775, 66 S. W. Rep. 725; Gorrell v. Greensboro Water Supply Co., 124 N. C. 328, 32 S. E. Rep. 720, 46 L. R. A. 513, S. C. 70 Am. St. Rep. 598. In this last case the contract between the city and the water company was very similar to the one at bar so far as the duties of the latter are concerned. Judge Clark rendered the opinion in the case. Among other things it is said: “It is true the plaintiff is neither a party nor privy to the contract, but it is impossible to read the same without seeing that, in warp and woof, in thread and filling, the object is the comfort, ease and security from fire of the people, the citizens of Greensboro. This
In the case of Fisher v. Greensboro Water Supply Co., 128 N. C. 375, 38 S. E. Rep. 912, it was decided that the water company was liable in an action of tort where it failed to supply water, and damage by fire resulted from such failure to the property of a citizen. These views of the Supreme Court of North Carolina were tested in the United States. Circuit Court for the Western District of North Carolina in the case of Guardian Trust & Deposite Co. v. Greensboro Water Supply Co., 115 Fed. Rep. 184. The question arose in this way: The Guardian Trust & Deposite Company filed a bill to foreclose two mortgages against the Greensboro Water Supply Company. Judgment creditors of the Greensboro Water Supply Company intervened and insisted that their judgments under a statute of North Carolina had priority over the mortgages though rendered after the.mortgages were given. The statute in express terms provided that mortgages on the property or earnings of incorporated companies should not have not power to exempt such property from execution for the satisfaction of any judgment obtained in the State courts for labor, “torts committed by such incorporation, its agents or employes whereby any person is killed, or any person or property injured, any clause or clauses in such mortgage to the contrary notwithstanding.” The judgments of the intervenors were obtained for the failure. of the Water Supply Company to furnish water to extinguish the fire by which the property of the intervenors was destroyed, and recited that the damages were given
In the case of Fisher v. Greensboro Water Supply Co. supra, the Supreme Court .held that the, plaintiff was, under the facts of the case, entitled to declare in tort. The question in the United States' Circtiit Court was whether the Supreme Court of North Carolina had decided correctly in holding that the judgments of the intervenors were for torts. The federal court says “the question is not whether the judgment be valid, but whether it is a judgment of such a character as to be given priority to the claim of the mortgagees, who were not parties to the suit in which it was obtained,” and says that the Supreme Court of North Carolina had declined to pass upon this question of priority under the statute in Fisher v. Greensboro Water Supply Co., supra. After stating that the statute gave priority to judgments for torts committed by such incorporation, etc., it proceeds: “In the case at bar property was injured because of the alleged negligence of the Greensboro Water Supply Company. Would an action for tort lie? The Greensboro Water Supply Company had assumed the obligation of supplying the city and its inhabitants with water for domestic and public purposes, and also for the purpose of extinguishing.fires. The Supreme Court of North Carolina had held in the case of Gorrell v. Greensboro Water Supply Co., 124 N. C. 328, that an action would lie against the corporation as well on the part of the City Council as on that of any citizen of the city. The judgments before us establish the fact that such a supply of water for the purpose of fire was not furnished. They also establish the fact that the failure to do so was because of the negligence of the defendants. I» such negligence the foundation for an action in tort?”
It is contended by the defendant in error that the only juestion before the U. S. Courts in these cases was whether the judgments rendered in the North Carolina courts were in tort or on contract, and that the question of the right of the plaintiff to sue at all was not passed on. But it seems to us that both of these courts passed on the question of the right of the plaintiffs to sue in tort, and that they upheld that right. For if the plaintiffs did not have the right to sue in tort, then it follows that their judgments could not have been given priority over the mortgages. It was for the purpose of discovering the nature of the judgments, as being ex contractu or ex delicto, that these courts entered into an examination of the fads upon which the judgments were predicated, and that examination led to the conclusion that they were properly judgments in tort. Certainly there is nothing in the opinions of these courts that suggests a doubt of tire correctness of the reasoning of the Supreme Court of North Carolina, but on the contrary that reasoning is supported and strengthened.
Upon the question of the liability in damages of a corporation which had undertaken a public duty to be per
The judgment is reversed at the cost of the defendant in error, and the cause remanded for further proceedings.