Birmingham Waterworks Co. v. Brooks ( 1916 )

Whether the duty of the water company to supply appellee with water arises out of the nature of its business, as one affected with public interest, or out of a contract subsisting between the city of Birmingham and the water company, it is qualified by the duty of appellee to provide a proper service pipe to convey the water from the main to the premises; this because the water company has no right, in the absence of contract, to lay such service pipe on private property. Otherwise stated, the right of the citizen to be supplied with water by a public water company is qualified by the duty of the citizen to pay or tender the customary rents and provide the means of conveying the water from the water mains onto his property. Therefore, if the service pipe through which appellee demanded that the defendant furnish her with water was used by others than appellee, and if, in supplying appellee through this pipe, the water company would be compelled to supply others without compensation, it had a legal right to refuse to supply appellee through such pipe, on the ground that appellee had not provided a proper service pipe through which she could be supplied by the company without loss.

No duty rested upon appellee to pay the debt of another, unless the appellee was a user of water supplied through the joint service pipe at the time the rent in arrears accrued; and being under no duty to pay such debt, its existence afforded no excuse for the water company to refuse to supply her with water through such pipe, unless in doing so the person in arrears would also be supplied. Otherwise stated, appellee had no right to be supplied with water through a joint service pipe, when the other users were in arrears with their water rent, and on demand had refused to pay rents which were justly due.

Of course, if the claim for such rent was not justly due, but had arisen on false measurements, the existence of such demand would afford no excuse to the water company. City of Montgomery v. Greene et al., 180 Ala. 322, 60 So. 900.

If, however, water was supplied to appellee and another through a joint service pipe, although appellee paid her just proportion of the rent, and the other party refused to pay on demand being made therefor, on account of the relation of the appellee and such defaulter, the law imposes on her responsibility for the entire debt; and if such debt was justly due, and she failed to pay, this would be a legal excuse for refusing to supply her with water. Harrison v. Birmingham Waterworks Co., 9 Ala. App. 605, 64 So. 164.

When these principles are applied to the defendant's several special pleas, we find that pleas 3, 4, and 7 do not show that plaintiff was a user of water supplied through the alleged joint service pipe when the alleged debt accrued, or that in supplying plaintiff, another, who was in arrears for water rent, and who after demand had refused to pay, would be supplied. Pleas 5 and 6 do not show that the tenement house other than the one used by the plaintiff was occupied.

Plea 9 is subject to the vice of stating the mere conclusion of the pleader. Donaldson v. Roberson, 15 Ala. App. 354,73 So. 223.

While plea 8 does not aver that demand was made on Gingold for the water rent overdue and unpaid, and a failure or refusal to pay same, this objection was not made by the demurrer, and the plea was not subject to demurrer assigned, and the court erred in sustaining the demurrer. Code 1907, § 5340.

The defendant was under no duty to furnish plaintiff with water through the joint service pipe, upon tender by her of the usual amount charged for the house she occupied if, at the same time, defendant would be compelled to furnish Gingold, or his tenant, O'Conner, under the contract which had been breached by a failure to pay on demand the water rent due.

Marie O'Conner was not a party to the contract set up in the plea, and had no rights thereunder, and was not liable for the debt arising out of that contract. Birmingham Water Co. v. Keiley, 2 Ala. App. 629, 56 So. 838; Burke v. City of Water Valley, 87 Miss. 732, 40 So. 820, 112 Am. St. Rep. 468; Turner v. Revere Water Co., 171 Mass. 329, 50 N.E. 634, 40 L.R.A. 657, 68 Am. St. Rep. 432.

The question argued in brief on the application for rehearing as to the right of the plaintiff, upon tender of the usual sum of money required to pay the water rents for supplying both houses with water through the joint service pipe, is not within the issues presented by the pleadings, and upon this question we express no opinion.

The uniform holding of the Supreme Court is that exemplary damages are not classed as special damages, and need not be specially claimed to authorize the imposition of such damages, and, although not specially claimed, if the evidence shows that the tort was committed wantonly or willfully, or with circumstances of aggravation, such damages may be awarded. A. G. S. R. R. Co. v. Arnold, 84 Ala. 169, 4 So. 359, 5 Am. St. Rep. 354; Snedecor v. Pope, 143 Ala. 275, 39 So. 318; Wilkinson v. Searcy, 76 Ala. 176; South N. A. R. Co. v. McLendon, 63 Ala. 266; A. G. S. R. R. Co. v. Sellers, 93 Ala. 9,9 So. 375, 30 Am. St. Rep. 17; Hughes v. Anderson,68 Ala. 280, 44 Am. Rep. 147; Patterson v. S. N. A. R. R. Co.,89 Ala. 318, 7 So. 437; R. D. R. R. Co. v. Vance, 93 Ala. 144,9 So. 574, 30 Am. St. Rep. 41; Anniston Pipe Works v. Dickey, 93 Ala. 418, 9 So. 720; Cook v. South. Ry. Co.,153 Ala. 119, 45 So. 156; Sparks v. McCreary, 156 Ala. 382,47 So. 332, 22 L.R.A. (N.S.) 1224; Johnson v. Collier,161 Ala. 204, 49 So. 761; Birmingham Water Co. v. Kelley, supra; Black v. Hankins, 6 Ala. App. 512,60 So. 441; N.C. St. L. Ry. v. Blackmon, 7 Ala. App. 530,61 So. 468.

From these authorities it is manifest that it is not necessary to the awarding of exemplary damages that the plaintiff show wantonness or willfulness in the commission of the tort; but such damages may be awarded, if the commission of the tort is attended with circumstances of aggravation, and therefore may be awarded in a case involving a charge only of simple negligence. In the case of L. N. R. R. Co. v. Markee,103 Ala. 160, 15 So. 511, 49 Am. St. Rep. 21, cited as supporting the rule announced in Bowles v. Lowery, 5 Ala. App. 555,59 So. 696, the court was not considering the question of exemplary damages, but the question as to whether evidence of willful or wanton injury would sustain a count charging simple negligence as a basis for the cause of action. If it be conceded that L. N. R. R. Co. v. Markee does not support the holding in Bowles v. Lowery, the latter case has been cited with approval and followed by the Supreme Court in the recent case of Roach v. Wright, 195 Ala. 333, 70 So. 271.

"As a general rule of pleading, it is not necessary to claim exemplary damages by name, it being sufficient if the facts alleged and proof be such as to warrant their assessment." 8 R. C. L. p. 626, § 169. That the complaint in this case, though declaring on simple negligence, by stating the facts under which the alleged tort was committed, brings the case within the general rule, and under it exemplary or punitive damages may be awarded. A. G. S. R. R. Co. v. Arnold, supra; Birmingham Water Co. v. Keiley, supra.

For the error pointed out, the judgment is reversed, and the cause remanded.

Reversed and remanded.