Wilson v. Georgia Power and Light Company , 73 Ga. App. 436 ( 1946 )

The court did not err in sustaining the general demurrer to the amended petition.

DECIDED FEBRUARY 7, 1946. Mrs. Earl Wilson brought an action ex delicto to recover damages against Georgia Power and Light Company, a corporation. Her amended petition contained the following allegations: On December 3, 1944, her residence and its contents in the City of Donalsonville were destroyed by fire, and she was thereby damaged in the amount of $9000; and this damage was the result of the negligence of the defendant. On August 8, 1928, said city, by deed, sold its waterworks system to the defendant; and, in an ordinance of the city, granted to the defendant a franchise to operate said system, upon the condition that it and its successors should "be liable for all damage that may result to persons or to public or private property by reason of the negligent or improper exercise" of said franchise. On the day of the fire in question, the defendant was guilty of the negligent and improper exercise of its franchise by its failure to have in its water tank and tower (with which its pipes, mains, and fire hydrants were connected) a sufficient supply of water to put out an ordinary fire, such as the fire which destroyed the plaintiff's house. The charter of the city contained a provision authorizing it to grant franchises "on such terms and conditions as said town council shall fix;" and it follows that the ordinance granting the franchise in question, and the defendant's acceptance and exercise of the franchise, under such terms, "constituted a statute and ordinance binding on it, and, regardless of any contract, to carry out the terms on which the franchise was granted, to wit, that the defendant ``shall pay all damage that may result to persons or to public or private property by reason of the negligent or improper exercise' of said franchise." A copy of the deed from the city to the defendant, and a copy of the ordinance granting the franchise to the defendant, were attached as exhibits to the petition. The court dismissed the petition on general demurrer, and that judgment is assigned as error. The general rule is that a resident of a city can not recover damages, in an action ex contractu or in an action ex delicto, from a waterworks company, for a loss by fire caused by a failure of the company to furnish, in accordance with its contract with the city, a sufficient supply of water to extinguish the fire.Fowler v. Athens City Waterworks Co., 83 Ga. 219 (9 S.E. 673, 20 Am. St. R. 313); Holloway v. Macon c. Co., 132 Ga. 387 (64 S.E. 330); Gnann v. Coastal Co., 44 Ga. App. 217 (160 S.E. 807); Martha Mills v. Moseley, 50 Ga. App. 536 (179 S.E. 159); Washington Water Co. v. Pope Mfg. Co., 176 Ga. 155, 161 (167 S.E. 286). However, counsel for the plaintiff in error earnestly contends that the instant case is an exception to the above-stated general rule, because the heretofore-quoted provision of the city ordinance granting the franchise to the defendant imposed upon it a legal duty, owed to any resident of the city whose house was on fire, to furnish a sufficient supply of water to extinguish the fire. In order to have that question finally determined, this court certified the question to the Supreme Court; and that court in its answer to the question held that the provision in question of the city ordinance did not constitute this case an exception to the general rule, since the ordinance "makes no effort to prescribe the specific acts of diligence, but simply provides that the waterworks company shall be liable for and save the city harmless from any claim for damages on account of negligence. This could have no meaning other than such damages as are recoverable under the law."

Under that ruling of the Supreme Court and the facts set forth in the petition, the trial court did not err in dismissing the petition on general demurrer.

Judgment affirmed. MacIntyre and Gardner, JJ., concur.