Wilkinson v. Light, Heat & Water Co. , 78 Miss. 389 ( 1900 )

Boothe, Special J.,

delivered the opinion of the court.

Appellants brought this suit to recover of the appellee, the water company, the value of his residence, furniture, etc., destroyed by fire September 30, 1899, amounting to $10,800, on the ground that the water company, by its negligence, had failed to furnish to the fire department of the city of Jackson the water pressure in the hydrants of the company necessary for the extinguishment of fires, stipulated, as alleged, to be furnished by said company under its contract with the city, made in 1888, which contract is made an exhibit and a part of plaintiff’s declaration. It devolves upon the court to construe this contract, and to determine the rights of appellant, if any, growing out of it and the liability of appellee to appellant, if any has accrued, for the loss and damage complained of and set out in the declaration. A demurrer to the declaration was interposed and ivas sustained by the court below, and the case comes to this court, that the legal questions raised by the pleadings may be adjudicated.

It is contended by the appellant that the water company is a public corporation of this state, and not a mere aid or arm to the municipality of Jackson, exercising a governmental function; that it is a corporation for gain, engaged in a public business and charged with obligations and duties to the public within its locality; and appellant holds that the contract with the city was made for his benefit and for the benefit of the other inhabitants and citizens of the city, in consideration of the special tax he and they had to pay by reason of the contract, and also by reason of the acceptance of the valuable franchises conferred by its charter, and these considerations raised a public duty on the part of the water company to the public and are sufficient to entitle appellant to maintain his action.

It is contended that it was the duty of said water company, under its contract, to keep all its hydrants supplied with water for fire service, and that the maximum pressure on the water in the hydrants should be maintained at all times, and be applied in case of fire, and that if this duty had been performed, appellant’s property would have been saved from destruction; that- the water company failed and neglected to perform this duty, and the destruction of appellant’s property was the direct and proximate result of such failure' and negligence, and that appellee is bound, under its contract with the city of Jackson, made, as contended, for appellant’s benefit, to reimburse appellant’s loss. For appellee it is contended that the city of Jackson had no authority in law to make the contract in controversy otherwise than for itself, if it had attempted to do so, which is denied, and that the contract imposed no public duty for the violation of which a taxpayer or inhabitant, when damaged thereby, may maintain an action; that there is no privity of contract between the water company and taxpayers or inhabitants, and that the fire hydrants of the company were rented by the city for use by its own fire department and in performance of its governmental function, and as a separate entity from the taxpayers and inhabitants. We fully recognize the rule of law as to privity of contract invoked by counsel for appellee, as also the exception thereto contended for by counsel for appellant, that a person not a party to the contract may maintain an action thereon if the contract clearly and explicitly shows that it was made for his benefit. In this case, .however, we are clearly of opinion that the contract before us imposes no public duty on the part of the waiter company to a citizen or inhabitant for the nonperformance of which an action of tort can be maintained, and that the contract does not show, in express terms or by fair intendment, that it was made for the benefit of the citizen or inhabitant in the sense that would enable him to maintain an action thereon. The demurrer was properly sustained. Let the judgment of the circuit court be affirmed.