57 Fla. 249 | Fla. | 1909
In a petition for rehearing it is suggested that the court overlooked the fact that the declaration contains counts founded in 'contract and in tort, 'and the court is asked to decide all the points argued by counsel for 'both parties so that the opinion may 'be useful in a large number of similar cases now' pending awaiting the determination of the questions presented in this case. The opinion states that the counts are both ex contractu and ex delicto, and the decision is that the liability of the defendant in cases of this general character had been previously adjudged', but that no count of the declaration in this case sufficiently alleges that the -negligence charged was a proximate cause of the injury complained of.
In many jurisdictions where the right to maintain actions of this character is denied, it is not upon the theory that the water company -is not liable for its negligence, but that no one is authorized to enforce the liability.
In general an action to- recover damages for injuries proximately caused by the negligence of another may be maintained only by those between whom and the negligent party there existed at the time of the negligence some relation or privity out of -which a contract or legal duty expressed or implied arose in favor of the injured party. See 1 Kinkead on Torts, Sec. 6; 2 Andrews American Law, pg. 1233.
If a duty is due to an individual by contract or by express or implied provisions of law a negligent omission
The Tampa Water Works Company was incorporated by the state to do business in Tampa, Hillsborough County, Florida, and authorized by its -charter “to erect waterworks, to lay down pipes, build reservoirs, and fountains, supply the fire department and citizens with water, charging therefor such rates, as may be fixed,” etc.
The City of Tampa -by its charter is authorized “to provide for the establishment of waterworks;” “to- levy and collect a special tax annually for waterworks and fire..protection;” “to pass all necessary laws to guard against fire;” “to do and regulate any other matter or thing that may tend to promote the peace, health, welfare, prosperity and morals of the said city;” “and to do and perform all such other act or acts as shall seem necessary and best adapted to the improvement and general interest of the city.” These powers confer upon the -city ample -authority to provide b-y contract for waterworks and fire protection to the inhabitants of the -city and to do everything proper to make effective the service provided for.
The relationship of agency is not necessary to confer on individuals the legal rights growing out of the contract and the public service undertaken by the water company. See Ancrum v. Camden Water, Light & Ice Co., S., C. , 64 S. E. Rep. 151.
The -contract in this case was, executed by and in the name of the City of Tampa and the Waterworks Company, but it -expressly states “ that in 'view of the urgent necessity for the better protection against fires, and also to obtain for the use of the inhabitants of said city an abundant supply of good water for all purposes, and upon term-s hereinafter mentioned, the exclusive right and privilege to construct, maintain and operate waterworks
AYhere a contract shows its clear intent and purpose to be a direct and substantial benefit to- -third parties, and not merely that third parties might be benefitted by it, or that third parties are indirectly or incidentally benefitted by it, the third parties who are directly, and substantially benefitted by the performance of the contract may maintain an action for its breach under the statute as the real parties in interest. If a direct and substantial benefit accrues to persons severally and they are the real parties in interest they miay maintain an action severally. See Wright v. Terry, 23 Fla. 160, 2 South. Rep. 6; Independent School Dist. of LeMars v. LeMars City Water & Light Co., 131 Iowa, 14, 107 N. W. Rep. 944, 10 L. R. A. (N. S.) 859; Smith v. Pfluger, 126 Wis. 253, 105 N. W. Rep. 476, 2 L. R. A. (N. S.) 783; Gustinia v. McEntee-Peterson Engineering Co., 131 N. C. 363, 42 S. E. Rep. 858; Gorrell v. Greenboro Water Supply Co., 124 N. C. 328, 32 S. E. Rep. 720; Jones v. Durham Water Co., 125 N. C. 553, 47 S. E. Rep. 615; 30 Cyc. 66; see also Baxter v. Camp, 71 Conn. 245, 41 Atl. Rep. 803, S. C. 71 Am. St. Rep. 169 and notes.
From the above extracts it- is clear that the charter authorized the company to engage in the business of supplying the city and its inhabitants with water for fire protection and other useful purposes, and that fhe contract was intended to be for the direct and substantial benefit
Individuals of course own a large part of the property in the city, and it is for the protection of this property as well as of the public property that the contract for furnishing water for fire purposes was made. The scope and purpose of the contract as well as its terms indicate this. Individuals are the real beneficial owners of the public property of the city. The individuals pay the special tax levied, collected and used as compensation for the service, 'and such individuals rely upon the service thus paid for by themj to protect their property as well as the public property to the extent of furnishing water as agreed. The contract is not in legal effect the appointment of an agent of the city to furnish water. The waterworks company is not a governmental officer or agent. Furnishing water is not a sovereign governmental function, but it serves a municipal purpose and is performed by a public service corporation. The city as a governmental agency may and does in effect guard the interests of its individual inhabitants in making tire contract; and the company is not the agent of the city. It is a contracting party for the performance of a service on its own responsibility. The law operates upon the contract made for the direct benefit of the individuals, imposes -a duty upon the company in their favor, and gives a right of action to' the individuals severally for a breach of the contract or legal duty due to them severally when
There is no statute, or stipulation controlling the liability or remedy for negligence, -or permitting without liability temporary failures to perform the duty undertaken by the water company. See Ancrum v. Camden Water, Light & Ice Co., S. C. , 64 S. E. Rep. 151. See also Holloway v. Macon Gaslight & Water Co., Ga. , 64 S. E. Rep. 330.
If the defendant is responsible for the destruction of the plaintiff’s property there is liability, -and there can be no doubt that the plaintiff whose property was destroyed is the real party in interest and is the proper plaintiff here. See 30 Cyc. 83; Gross v. Heckert, 120 Wis. 314, text 320, 97 N. W. Rep. 952; 15 Enc. Pl. & Pr. 710.
The contract requires the company to supply “a first class fire protection” only in the particulars and to the extent that the specifications named in the contract will afford it.
A. duty and liability for negligence of -omission or commission in performing that duty, may be founded in the law where a public service is undertaken whether a contract exists as to the service or not. The omission to perform a mere -contract duty may not be a tort, but if a legal duty is imposed independent of or concurrently with the contract, a breach of the legal duty may be a tort. See Rich. v. New York Cent. & Hud. Riv. R. R. Co., 87 N. Y. 382; Coy v. Indianapolis Gas Co., 146 Ind. 655, 46 N. E. Rep, 17, 36 L. R. A. 535.
Where a public service is undertaken by a corporation exercising public franchises, and -duties to individuals are
By implication of law there is imposed upon all corporations engaged in performing a service of a public nature the duty to render for a reasonable compensation and without unjust discrimination a service reasonably adequate to meet the just requirements of those directly affected by the service. State ex rel. Ellis v. Atlantic Coast Line R. Co., 53 Fla. 650, 44 South. Rep. 213, 13 L. R. A. 32; Griffin v. Goldsboro Water Co., 122 N. C. 206, 30 S. E. Rep. 319. For negligence in performing this duty the corporations are liable in damages to those specially and proximately injured thereby. A failure to perform a duty m¡ay be mere negligence or it may in effect be an abuse of franchise privileges or an unjust discrimination in the performance of a public service. The absence of a contractual relation between a person injured and the person whose negligence caused the injury is not material in any case where the negligent person
A duty may arise by implication of law out of the relation existing between persons in the interest of common justice and the general welfare. When the duty exists there is a corresponding liability in damages for an injury proximately resulting from negligence of omission or commission in the performance or non-performance of the duty where the injury should reasonably have been foreseen as naturally and probably to occur in consequence of the negligence. If under the circumstances of the negligence the injury should reasonably have been foreseen as likely to occur .as a proximate result of the negligence, damages may be recovered for any injurious consequences that naturally and ordinarily flow from the injury. See 1 Thomp. on Neg. Secs. 4, 28, 50 et seq.
When a public service corporation chartered for the purpose exercises franchises and actually undertakes, for a compensation paid from a special tax levy, to render the public service of supplying to a city and its inhabitants water adequate for all purposes, including fire protection to the property of the city and its inhabitants, a relation between the corporation and the individual property holder is thereby established which by implication of law imposes reciprocal duties and obligations upon the parties. Furnishing water as a fire protection to public and private property in a city is a service of a public nature. A duty imposed upon the corporation is to furnish as required by the express or implied provisions of law applicable in such cases, a supply of water reasonably adequate to extinguish fires within the territory covered by the undertaking. A duty of the individual property holders is to pay the tax to compensate for the service. The individual has a right to rely upon the proper rendering of the service for the purpose designed. The cor
The consideration for which the franchises were granted and annual payments made to the defendant is not merely the lessening of risk of destruction by fire and the lowering of insurance rates by furnishing water iriegularly if the company so chooses, but the purpose was to secure a constant adequate supply of water. If there is negligence in this there is liability. If no negligence there is of course no' liability. No risk of an insurer or corresponding compensation is involved. The compensation is for adequate service and the liability is for negligence in rendering the service. ,
Where the performance of a particular service is undertaken the law by implication imposes a duty to properly render the service, and liability for negligence in the performance of the duty is also imposed by law. See 1 Street on Foundation of Legal Liability 92, 185, et seq.; 1 Kinkead on Torts, Sec. 244.
In jurisdictions where it is held there can be no recovery by an individual on a contract made with the city to furnish water for fire protection, it is also held that the duties of the water companies may be enforced by mandamus, thus fixing the duties as being expressed or implied by law and not merely defined by contract. See Robbins v. Bangor R. & Electric Co., 100 Me. 496, 62 Atl. Rep. 136, 1 L. R. A. (N. S.) 963; Haugen v. Albina Light & Water Co., 21 Or. 411, 28 Pac. Rep. 244, 14 L. R. A. 424; 26 Cyc. 378, and cases cited in note 53. See also Pond v. New Roshelle Water Co., 183 N. Y. 330, 5 A. & E. Ann. Cas. 504, 1 L. R. A. (N. S.) 958;
The leading case of Fowler v. Athens City Waterworks Co., 83 Ga. 219, 9 S. E. Rep. 673, 20 Am. St. Rep. 313, holding that where there is no contract obligation to an individual there can be no recovery ex delicto as there was in that case no duty imposed by law, has been differentiated if not modified by the late case of Freeman v. Macon Gas, Light & Water Co., 126 Ga. 843, 56 S. E. Rep. 61, 7 L. R. A. (N. S.) 917, in which it is held that the water company being a public service corporation is liable for its wrongful act in relation to a duty it owed to a member of the general public by virtue of a statute.
It may be that the statutory duty in the Freeman case was but a duty'- that would have been implied. If the company is liable for wrongs committed as to express legal duties there seems to be no valid reason why liability does not exist for a negligent omission,' or for an omission without valid excuse, to perform a duty implied by law from the relation voluntarily assumed by the corporation towards the individual property holders of the city who are affected by the public service engaged in by the corporation. The individual property holders of the City of Tampa have a direct and beneficial interest in the furnishing of water by the defendant for fire protection, rely upon the service undertaken by the defendant as a protection to their property and pay a special tax to meet the expense. The late case of Holloway v. Macon Gaslight & Water Co., Ga. , 64 S. E. Rep. 330 simply follows the Fowler case.
In the elaborately considered case of Allen & Currey Mfg. Co. v. Shreveport Waterworks Co., 113 La. 1091, 37 South. Rep. 980, 2 Am. & Eng. Ann. Cas. 471, where it was held that under the statute of that State an individual
In undertaking to furnish water to extinguish fires in the city the .water company uses public franchises and engages in performing service of a public nature. State ex rel. v. Tampa Waterworks Co., 56 Fla. 858, 47 South. Rep. 358; City of Tampa v. Tampa Waterworks Co., 45 Fla. 600, 34 South. Rep. 631, 199 U. S. 241, 26 Sup. Ct. Rep. 23.
The duties of the' corporation in performing the public service so undertaken are such as are expressed or implied by law. See State ex rel. Ellis, Attorney General v.Atlantic Coast Line R. Co., 53 Fla. 650, 44 South. Rep. 213, 13 L. R. A. (N. S.) 320; Western Union Tel. Co. v. Milton, 53 Fla. 484, 43 South. Rep. 495; State ex rel. Attorney General v. Atlantic Coast Line Ry. Co., 52 Fla. 646, 41 South. Rep. 705, 12 L. R. A. (N. S.) 506. The law imposes duties commensurate with the reasonable requirements of the service undertaken. Furnishing water for fire protection is as much a public service as. furnishing water for individual consumption and use.
By using the public franchises and engaging in rendering the public service of furnishing water for fire protection the waterworks company assumed the duty imposed by implication of law to furnish for the inhabitants of the city individually and collectively a supply of water in established hydrants reasonably adequate to meet the just and lawful requirements of the public
A total failure to perform the public duty may be an abuse of public franchises and a violation of charter rights and duties for which remedies are afforded through public agencies. For special injuries to individuals proximately caused by negligence in the discharge of a duty there is liability for damages in an action by the person so injured. See Whittaker’s Smith on Neg. 294.
One who is not a party or privy to a contract or who is not the real party in interest, cannot, in general, maintain an action for a breach of duty arising out of the contract; but if a duty exists independently of the contract an action may be maintained for a breach of the duty, and the contract may tend to show the relation out of which the duty arises. See Marvin Safe Co. v Ward, 46 N. J. L. 19. See also Lampert v. Laclede Gas-Light
A duty and a corresponding liability for negligence in the performance of the duty may arise by implication of law out of the relation of parties to one another. It is the duty of every one to so exercise his own rights as not to injure others in the enjoyment of their rights. See Andrews American Law 1232, 1330. It is the duty of those having the control of property to so use and manage it as that others will not be injured by the negligent use or control of the property. See Benedict Pine Apple Co. v. Atlantic Coast Line R. Co., 55 Fla. 514, 46 South. Rep. 732; Young v. Waters-Pierce Oil Co , 185 Mo. 634, 84 S. W. Rep. 929; Houren v. Chicago, M. & St. P. Ry. Co., 236 Ill. 620, 86 N. E. Rep. 611.
Where there is a duty there is a corresponding liability for injuries proximately resulting from negligence of commission or omission in the discharge of the duty where the injury should have been contemplated as likely to result from the negligence and the plaintiff is not at. fault. The measure of the liability may be compensation for injury or losses proximately caused by the negligence, or the liability may be in punitive damages as the circumstances may warrant under the law. By implication of the law the duty Is imposed upon those using public franchises and engaged in a public service to render the service undertaken so as to comply with the requirements of law and so as not to injure others. This necessarily includes the duty to properly and adequately serve the individual members of the public in -the manner and to the extent lawfully required because of the public service engaged in. Ordinarity the corresponding liability is for compensation in damages for injuries proximately resulting from negligence in -the discharge of the duty imposed by law. Remote and speculative injuries are
The nature of the service undertaken by the defendant and the benefits to be derived from it indicate a duty to individuals and a consequent liability for negligence. See Hayes v. Michigan Cent. R. Co., 111 U. S. 228, 4 Sup. Ct. Rep. 369.
No privity of contract is necessary to support an action in tort for a direct invasion of a legal right, or for the infraction of a duty implied by law where special injury to an individual results from the infraction.
Where there is a duty and negligence in performing 'the duty with resulting injury, there is liability.
Where a case is new in instance, but not in principle, it is the duty of the court to apply remedies applicable to cases coming within existing principles, even though the principle has not before been applied. Modern developments in the rendering- of public service by corporations require the application of old legal principles to new circumstances as they arise in particular cases. See State v. Atlantic Coast Line R. Co., 56 Fla. 617, 47 South. Rep. 969, text 976; Pavesich v. New England Life Ins. Co., 122 Ga 190, 50 S. E. Rep. 68, 2 A. & E. Anno. Cases 561, 69 L. R. A. 101.
While the contract obligation is with the city in its corporate municipal capacity, it is for the immediate benefit of the individual property holders, and the public sendee undertaken is to furnish water for extinguishing-fires on the property of the city and of individuals. The compensation received for this service from the tax-payers through the city is for the entire service covering-protection to the property of individuals as well .as to the public property of the city. The franchises used by
It is assumed that the duty imposed by the contract in this case is commensurate with the reasonable requirements of the public to be served. The contract may certainly be regarded as evidence -to be considered with other matters in determining the duty of the defendant in rendering the service under the law. In the-absence of express provisions of law covering -the entire subject the duty of the defendant raised by implication, of law is to so render the public service undertaken as to-adequately comply with the reasonable and lawful requirements of those affected by the service. The duty the defendant owed directly and primarily to the plaintiff, by virtue of the public service being performed, was to furnish water for extinguishing fire in the plaintiff’s-house in the manner and to the extent lawfully required by -the public authorities under prescribed valid regulations or by the contract and implied provisions and principles of law which are a part of the contract in such cases in the absence of express valid regulations. For a breach of this duty causing special injury an action for damages may be maintained, no other remedy being expressly provided by law or by stipulation.
The allegations of negligence admitted by the demurers do not state facts sufficient to show that the .negligence charged was a proximate caúse of the injury complained of. ,
The negligent failure of the defendant to furnish.
If the negligent failure of the defendant to furnish water as required by law where the fire started was a proximate cause of the burning of the plaintiff’s property some distance away, ultimate facts showing this should be allowed with certainty and directness.
If because of the defendant’s negligent failure to furnish water where the fire started, and because of usual natural conditions that were ordinarily likely to exist under the circumstances and should reasonably have been contemplated as probably to occur, the the fire, as a proximate result of the defendant’s negligence, spread to and consumed the plaintiff’s property, the defendant may be liable if it did not so discharge its immediate duty to the plaintiff by furnishing water at or near the plaintiff’s house that could reasonably, under the circumstances as they then existed, have been successfully used in extinguishing the fire when it reached the plaintiff’s property. If the defendant was not negligent in failing to furnish water for the immediate protection of the plaintiff’s property, but as a proximate result of the defendant’s negligence in not furnishing water as legally required where the fire started or at points covered by the conflagration before it reached the plaintiff’s property, the fire spread to and consumed the plaintiff’s property because it could not reasonably have been extinguished at the plaintiff’s house by the use of the water furnished there, the defendant may be liable.
Even though the defendant was negligent in not furnishing water where the fire “existed” before it reached the plaintiff’s'property, if such negligence was not in fact a proximate cause of the loss- there is no liability.
Where negilgence is the basis of an action, the declaration should contain' allegations of the negligent act or omission complained of, and also allegations of the injury sustained, and of facts showing that such injury was a proximate result of the negligence alleged. German-American Lumber Co. v. Brock, 55 Fla. 577, 46 South. Rep. 740; Leynes v. Tampa F. & M. Co., 56 Fla. 488, 47 South. Rep. 918.
The rule in actions ex delicto is that the injury ímwt be such as the parties should reasonably have contemplated as the ordinary, natural and probable result of the negligence alleged. If the injury is a natural, probable and ordinary result of the negligence alleged, it will be held to have been contemplated by the parties. The particular consequences of the injurys need not have been in fact contemplated. If the injury should have been contemplated there is liability for all the consequences of the injury that flow in uninterrupted sequence from the orig
The law contemplates that public utility corporations shall render with reasonable adequacy and efficiency the public service undertaken, and that such corporations shall respond in damages for negligence resulting in injury .to others. But the law does not contemplate that damages may be recovered for any and all injuries that may be shown to have resulted from acts' or omissions of the corporations. Such a rule would be patently unjust and would be detrimental to the public welfare. If public service corporations are required to pay damages for which they are not legally and reasonably responsible, it
If the defendant continues to engage in the public service undertaken it will be held liable in damages for its negligence in the performance of its duty which proximately results in particular injuries even though' the defendant has not been paid all that is due to- it for the public service. The rights of the defendant may be enforced by due course of law, and if it fails to maintain its rights it cannot for that reason be relieved of its duty in a public service which it continues to appear to perform as undertaken.
An exhibit may by apt words be made a part of a declaration ex contractu or ex delicto. See State v. Seaboard Air Line Ry., 56 Fla. 670, 47 South. Rep. 986.
Unless the existence or action or the non-existence or non-action of the fire department of the city is an element in determining whether the negligence of the defendant was a proximate cause of the injury to the plain
Rehearing denied.