53 W. Va. 348 | W. Va. | 1903
Frances L. Uichol complains of a judgment of the circuit court of Cabell County, sustaining a demurrer to her declaration against the Huntington Water Compan3r, a private corporation, and dismissing her action, upon her declination to amend. She was the owner of a building, called the Hotel Adelphi, which was totally consumed by fire July 2, 1901, which, when first discovered, was confined to the top of the building, and did not burst through the roof into a blaze until sometime after the arrival of the city firemen, with hose and appliances suitable and sufficient to have extinguished the fire and saved the building, had there been water in the pipes and hydrants of the defendant company.
Said declaration further avers the authority of the city of Huntington under its charter to make regulations guarding against danger or damages by fire to itself and owners of property within, its limits, by erecting, authorizing, or prohibiting the erection of water works in or near the city; that it had passed an ordinance authorizing certain individuals to construct, maintain and operate water works to supply the city and its inhabitants with water for fire and domestic purposes; that
The writ commands the defendant to be summoned to answer the plaintiff “of a plea of trespass on the case.” The declara
The allegations of the declaration strongly import a purpose to state the cause of action founded upon contract, and, for the plaintiff in error, the declaration is sb treated in the brief. For the defendant in error, it is insisted that the declaration is for a tort, based upon a breach of duty arising from the two alleged contracts, one between the city and the defendant, and the other between the plaintiff and the defendant. As the all important question is, whether a cause of action, either ex contractu or ex delicto, is, or can be, stated upon the facts disclosed by the declaration, it is unnecessary to gire time and labor to an attempt to settle the controversy concerning the character of the declaration. If it shall be found that a good cause of action cannot bo predicated upon the facts, such an attempt would not only be supererrogant, but might result in an erroneous determination of a doubtful question and the making of a bad precedent.
The case of Mendel v. Wheeling, 28 W. Va. 233, establishes the doct ■■•ue that a city, owning its own water works, under a charter, not compelling, but permitting, it to own and operate the negligence of the agents and servants of the city in suffering the water pipes to become useless, so that they will not supply water for the extinguishment of fire. It is further held in that case that it is wholly immaterial, on the question of such liability, whether the city charges those who are supplied with water a certain annual water rent therefor, by way of raising the means to defray the expense of the maintenance and operations of such works, or whether such expense is defrayed by funds provided by direct taxation. In that case, the opinion delivered by Judge Johnson reviews practically all the cases which rest a distinction upon the ground that the city charges individuals for services rendered them, such as furnishing water or gas, and repudiates that distinction in the following language:
“The idea seems to have been in the minds of these'courts, that, unless the cities were to receive a profit for the use of their water works, they would not be liable for the improper construction or improper use of the works. They seemed to so hold in view of the fact, that it had often been decided, that a municipal corporation was not liable for injuries resulting from the negligence of its agents while discharging a purely govern*352 mental duty. It seems to me, that as applied to a municipal corporation the idea of profit to be received by the corporation has nothing to do with its liability. It receives no profit in the sense, that a private corporation does, from its operations. In the case of a private corporation the profits received are divided among its stockholders. After the payment of the debts of a private corporation every dollar of its earnings is at the disposal of the corporation to be distributed in dividends to its stockholders or reinvested for their individual benefit; not so with a municipal corporation, not one dollar of its earnings, after its expenses and other debts are paid, can by any possibility accrue to the benefit of any private individual. There is no stock and can therefore be no stockholders in a municipal corporation. If any profits accrue to it, they at once go to the benefit of the public. * * * If a city owns its water works, it may pay its running expenses and repairs by taxation, if it pleases, and furnish water free to all who will comply with its regulations; or, as is generally the case and is more just and equitable, it may keep up its works and repairs by charging each .individual at a fixed rate for the water he uses; and if there is any surplus, it is used in some other way for the benefit of the corporation to lessen the burdens of its citizens. Whatever profit, if it may be so called, it receives, the officers of the city charged with municipal duties, among which are the management of its water works, do not receive it or any part thereof, but it goes to the benefit of the public. It is not properly speaking a profit, but it is a mode of taxation to meet the burdens of the municipal government. Fo case has been cited, which shows that the plaintiff’s action here can be maintained. On the contrary many eases have been cited, which in principle decide, that a municipal corporation is not responsible for damages for loss by fire, which was caused by the negligence of the servants or agents of the city in charge of the water works and pipes under the city’s control.”
This effectually disposes of a large number of authorities cited in the brief for the plaintiff in error as sustaining the contention that there is nothing in the nature of the contract that would relieve the water company from liability, it being contended that, as, under these authorities, the city would be liable upon such a contract as was made with the water company,
In the opinion in Mendel v. Wheeling, the following is quoted from the opinion in Brinkmyer v. Evansville, 29 Ind. 187, delivered by Elliott, Judge: “A municipal corporation is for the purposes of its creation a government possessing to a limited extent sovereign powers, which in their nature are either legisla
This principle governs also the relation of a private or quasi public corporation, toward the citizens and property owners of the city in which, under a contract with the city, it undertakes to furnish water for protection against fire, in consideration of the payment by the city of an annual rental. Davis v. Water Works Co., 54 Ia. 59; Becker v. Water Works Co., 79 Ia. 419; Britton v. Water Works Co., 81 Wis. 48; Howsmon v. Water Co., 119 Mo. 304; Fitch v. Water Co., 139 Ind. 214; Ferris v. Water Co., 18 Nev. 44; Fowler v. Water Works Co., 83 Ga. 219; Mott v. Water & Mfg. Co., 48 Kan. 12; Safety Deposit and Trust Co. v. Water Co., 94 Fed. Rep. 238.
Thus, in Becker v. Water Works Co., 79 Ia. 419, it is held that “the law, which authorizes cities to contract for the building and operation of waterworks by individuals or companies, confers no power to contract with such individual or company to indemnify a citizen and taxpayer for damages which he may sustain by reason of a failure to furnish water as provided in
An effort has been made here, as in many other cases, to maintain this suit on the ground that the contract made between the city and the water works company contains a promise, or a contract, made for the benefit of the plaintiff. Practically all the courts hold the contrary of this proposition. In Ferris v. Water Co., the court says: “The plaintiff, in common with the other residents of the town, enjoyed the advantages of this
Two eases referred to in the brief for defendant in error assert a doctrine contrary to that enunciated in the cases here-inbefore referred to. They are Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky. 340, and Correll v. Greensboro Water Supply Co., 32 S. E. 720. The Kentucky case has been disapproved in Mott v. Water Co., 48 Kan. 12; Fitch v. Water Co., 139 Ind. 214; Howsmon v. Water Co., 119 Mo. 304; Britton v. Water Co., 81 Wis. 48; Safety Depost Co. v. Water Co., 94 Fed. R. 238. The North Carolina case, Gorrell v. Water Supply Company, admits that the Kentucky case is against the weight of authority, but approves and follows it on the ground that, “If then, neither the taxpayer himself nor the city on his behalf can sue the company, the conclusion seems to be that the loss by fire in1 these cases is regarded by the law as damage for which there is no redress.” This language is quoted from a note by Judge Freeman in 29 Am. St. Rep. 863. The opinion then proceeds thus: “This is a complete redtictio ad absurdmi, and we prefer not to concur in cases, however numerous, — there are probably a dozen scattered through half a dozen states, — which lead to such conclusion.” The answer to this is that, although the property owner has not a right of action against the water works company for his damages, ho is in no worse condition than he would be if the protection of his property were intrusted to the city, exercising its police power itself, and not through a water works company as an agent or instrumentality in its
From the foregoing, it is very clear that no recovery can be had upon the contract between the city and the water works company. Nor can a different conclusion be reached by applying the principles governing actions ex delicto. In Fowler v. Water Works Co., 83 Ga. 219, the court say: “There being no 'groiuid for recovery, treating the action as one ex contractu, is it better founded treating it as one ex delicto? We think not, The violation of a contract entered into with the public, the breach being by mere omission or non-feasance,' is no tort, direct or indirect, to the private property of an individual, though he be a member of the community and a taxpayer to the government. Unless made so by statute, a city is not liable for.failing to protect the inhabitants against the destruction of property by fire. Wright v. Augusta, 78 Ga. 241; Am. and Eng. Ency. of Law, vol. 7 p. 997, et seq. We are unable to see how a contractor with the city to. supply water to extinguish fires commits any tort by failure to comply with ¡his undertaking, unless to the contract relation there is superadded a legal command by statue or express law.” ■ To the same effect are Fitch v. Water Co., 139 Ind. 214; Howsmon v. Water Co., 119 Mo. 304.
But one question remains to be considered and that is, whether a recovery can be had upon the contract alleged to have existed directly between the plaintiff’s tenants and the water company. There is no allegation that the premises were sup- ' plied with ¡hose and other appliances which would have enabled
There is no error in the judgment and it must be affirmed.
Affirmed.