Doyle v. South Pittsburgh Water Co.

*221 Dissenting Opinion by

Mr. Justice Jones:

I dissent from the views expressed and the conclusion reached in the majority opinion which (a) effect a completely unwarranted change in the law, (b) eliminate the tort immunity of a municipality and its agent while in the performance of governmental' functions, (c) render justiciable an ex delicto action by persons to whom no duty of care is owed, and (d) recognize the nonfeasance of a contractual obligation as the basis of an ex delicto action at the instance of strangers to the contract.

The instant tort action is against a private water company for its alleged failure to properly and adequately maintain certain fire hydrants in the City of Pittsburgh as a consequence of which failure water was not available, when needed, to successfully combat a fire in plaintiffs’ home. As this Court stated in Thompson v. Springfield Water Company, 215 Pa. 275, 279 , 64 A. 521 : “What the water company undertook and agreed to do was in the nature of a public function; that is to say, it was something that the municipality, if it chose, could have done at public expense in the exercise of rightful authority. Presumably from considerations of economy and convenience, instead of establishing a municipal water plant with the necessary equipment for the desired purpose, the municipality, by its proper authorities, engaged the [water] company owning an established water plant, to do for the public all that was deemed necessary in this regard. It thereby made the [water company] its agent to discharge for it this particular function, and since the act of the agent in the proper exercise of authority is the act of the principal, a correlative must be, that in doing the act no higher or other duty — we are now speaking of legal public duty — can rest on the agent than would have rested on the principal in the performance of the same service. The case on this point, *222 therefore, may be considered as though the municipality, and not the agent, were directly involved.” The instant water company, in the performance of the service of providing fire hydrants and other facilities for fire fighting, must likewise be regarded as the agent of the municipality in performing this service.

Implicitly in the case at bar and explicitly in Malter v. South Pittsburgh Water Company, 414 Pa. 231 , 198 A. 2d 850 (handed down this date), the majority opinion takes the position that, inasmuch as a municipality, or its agent, the water company, when it maintains a water system for supplying water to its inhabitants or individual consumers is performing a proprietary function, 1 the municipality, or the water company, when it employs such water system for the supplying of water for fire-fighting purposes retains such proprietary function. 2 The majority opinion would make no distinction whatsoever between the character of the function of the water system when it furnishes water for domestic and household use and when it is employed as a vehicle to bring water to the scene of a fire. In its failure to recognize such distinction, the majority errs. As presently relevant, the purpose of the water system vis-a-vis the plaintiffs was the public and governmental function of fire fighting and not its proprietary function of supplying water *223 for domestic use; while directed to fire fighting, the proprietary aspect of the water system became dormant to meet the emergency of the fire. 3 The water system cannot be regarded as permanently and irreversibly frozen into a proprietary function simply because the municipality or its agent also use the water system for proprietary purposes. That the supply of water for fire fighting constitutes a public or governmental function on the part of the municipality or its agent is clearly established: Thompson v. Springfield Water Company, supra; Scibilia v. Philadelphia, 279 Pa. 549, 552, 553 , 124 A. 273 .

Engaged in a governmental function, a municipality is, and should be, immune from tort liability (Scibilia v. Philadelphia, supra, wherein it was said: “the fighting of fires in large cities was not, until comparatively recent years, treated as a matter for direct governmental control, but its status as a public function is now well settled”, (p. 559); Anderson v. Philadelphia, 380 Pa. 528, 530 , 112 A. 2d 92 ; Pintek v. Allegheny County, 186 Pa. Superior Ct. 366, 371 , 142 A. 2d 296 ) and such immunity should extend to a water company when it is performing, on behalf of the municipality, a governmental function. Under the majority ruling neither the municipality nor its agent, the water company, would enjoy any such immunity in performing the governmental function of fire fighting. The attempt by the majority to justify such ruling on the ground that, once either the municipality or the water company utilize the water system for proprietary purposes, then the water system must always be considered a proprietary function even when used for fire fighting, finds no support either in law or logic. The overwhelming weight of authorities and the ne *224 cessity that a municipality and its agents be freed from legalistic niceties in proceeding in tbe performance' of public functions dictate a result contrary to that reached by the majority in this case. 4 If the majority opinion prevails, then our legislature should act promptly to retrieve our municipalities and their agents from the result of this decision. However, in the case at bar, I do not believe that either the water company or its principal, the municipality, need retreat behind the shield of governmental tort immunity in order to prevent a recovery because neither should legally be liable ex delicto in any event.

In attempting to justify actionable negligence in the case at bar, the majority opinion places great reliance on MacPherson v. Buick, 217 N.Y. 382 , and would expand its ruling to a point far beyond that which the writer of the MacPherson opinion (the late Judge Cardozo) chose to go in Moch Company v. Rensselaer Water Company, 247 N.Y. 160, 159 N.E. 896 . 5 That which Judge Cardozo grappled with in Moch, and that which the majority opinion now sidesteps, is the problem of finding the existence of a duty on the part of the water company running to an individual whose home was destroyed by fire. It is completely unnecessary to belabor the obvious — as does the majority opinion — that *225 fire hydrants, no matter how negligently maintained, do not cause fires. At the same time, it is highly significant that the majority fails to spell out wherein any duty was owed to plaintiffs by the water company. The rationale of Moch as to whether a cause of action lies in tort against a water company by an individual whose property has been destroyed by fire when the water company, either through lack of pressure, failure to properly maintain the fire hydrants, etc., fails to provide adequate water to fight the fire may be summarized: (a) “Given a relation involving in its existence a duty of care irrespective of a contract, a tort may result as well from acts of omission as of commission . . . (898); (b) the search is to ascertain “not so much the conduct to be avoided when the relation and its attendant duty are established as existing” but “the conduct that engenders the relation” (898); (c) if the “conduct” has reached a stage that would “commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward”, such as in MacPherson ; (d) the crux of the inquiry is whether the actor has reached the point “as to have launched a force or instrument of harm, or has stopped where inaction is at most a refusal to become an instrument for good” (898). Applying that rationale to the situation where a home is destroyed by fire by reason of the water company’s failure to supply water for fire fighting, the Court said that the water company, under its contract with the municipality to furnish water for fire fighting, was not brought into such a relation with every inhabitant of the city who might potentially be benefited through such water supply as to raise “negligent performance” by the water company to “the quality of a tort” and that the fault of the water company was the “denial of a benefit”, not *226 “the commission of a wrong” (899). 6 As Moch indicates, MacPherson does not aid plaintiffs. 7

The distinction drawn in Moch is by no means novel. In Elsee v. Gatward (1793), 5 Durnford & East’s 143, 150, 101 Eng. Rep. 82, 86, it was said: “ ‘The distinction is this: If a party undertake to perform work, and proceed on the employment, he makes himself liable for any misfeasance in the course of that work; but if he undertake, and do not proceed on the work, no [tort] action will lie against him for the nonfeazance’.”

In the case at bar, the Doyles recognize quite clearly that the basis of the negligence upon which they would predicate the tort liability of the water company is the “contractual agreement” between the water company and the municipality which obligated the former “to provide water for certain fire hydrants in the vicinity of [Doyles’] dwelling and to maintain said fire hydrants for use in emergencies for the sole purpose of fighting fires . . . .” What Doyles contend is that, in breach of said undertaking, the water company did not properly and adequately maintain the fire hydrants to assure the availability of water to fight the fire which threatened Doyles’ property. Such failure to do so — the nonfeasance of the contractual obligation — gave rise to no relationship between the water company and Doyles so that such nonfeasance attained *227 the “quality of a tort”. In Hart v. Ludwig, 347 Mich. 559 , 79 N.W. 2d 895 , the Court held that a defendant was not liable in tort for a refusal and neglect to care for and maintain an orchard as promised in an oral agreement with the orchard owner because, as in Moch, a remedy was sought in tort for nonfeasance of this contract. Having exhaustively reviewed authorities in other jurisdictions, that Court concluded: “The division thus made, between misfeasance, which may support an action either in tort or on the contract, and the nonfeasance of a contractual obligation, giving rise only to an action on the contract, is admittedly difficult to make in borderland cases. There are, it is recognized, cases in which an incident of nonfeasance occurs in the course of an undertaking assumed. Thus, a surgeon fails to sterilize his instruments, an engine fails to shut off steam [citing a case], a builder fails to fill a ditch in a public way [citing a case]. These are all, it is true, failures to act, each disastrous detail, in itself, a ‘mere’ nonfeasance. But the significant similarity relates not to the slippery distinction between action and nonaction but to the fundamental concept of ‘duty’; in each a situation of peril has been created, with respect to which a tort action would lie without having recourse to the contract itself. Machinery has been set in motion and life or property is endangered. ... In such cases, in the words of [Tuttle v. Gilvert Mfg. Co., 145 Mass. 169 , 13 N.E. 465 ], we have a ‘breach of duty distinct from contract.’ Or, as Prosser puts it (Handbook of the Law of Torts [1st ed.], §33, p. 205), ‘if a relation exists which would give rise to a legal duty without enforcing the contract promise itself, the tort action will lie, otherwise not’. Before us, however, we have not such a case. We have simply the violation of a promise to perform the agreement. . . . What we are left with is defendant’s failure to complete his contracted-for performance. This is *228 not a duty imposed by the law upon all, the violation of which gives rise to a tort action, but a duty arising out of the intentions of the parties themselves and owed only to those specific individuals to whom the promise runs. A tort action will not lie.” Negligence is the basis of a tort action; a mere breach of a contractual promise will not suffice. Distinct from a breach of contract, a breach of duty must be shown and such breach of duty is absent in the case at bar.

Another essential infirmity in the majority’s position is that it does not consider what duty, if any, is owed by the water company to the plaintiffs. It is not enough to say, as does the majority say inferentially, that the duty is to be found in the law and cite MacPherson as authority. In Palsgraf v. Long Island R. Co., 248 N.Y. 339 , 162 N.E. 99 , it was said: “Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. ‘Proof of negligence in the air, so to speak, will not do’ [citing authorities]” (99) and “back of [any given] act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury” (pp. 99,100). (Emphasis supplied). To paraphrase Palsgraf , Doyles must sue in their own right for a wrong personal to them, and “not as the vicarious beneficiar [ies] of a breach of duty to another” (100). When a person enters into a contractual undertaking, he intends to benefit the other contracting party and such persons as may properly be classified as third parties specifically intended to be benefited. The majority of this Court, inferentially, would read into the water company-municipality contract an intent to benefit all who might, by incidence, be benefited thereby. As was said in Moch, supra (897) : “In a broad sense it is true that every city contract, not improvident or wasteful, is for the benefit of the public. More than this, however, *229 must be shown to give a right of action to a member of the public not formally a party. The benefit, as it is sometimes said, must be one that is not merely incidental and secondary. Cf. Fosmire v. National Surety Co., 229 N.Y. 44 , 127 N.E. 472 . It must be primary and immediate in such a sense and to such a degree as to bespeak the assumption of a duty to make reparation directly to the individual members of the public if the benefit is lost. The field of obligation would .be expanded beyond reasonable limits if less than this were to be demanded as a condition of liability. ... By the vast preponderance of authority, a contract between a city and a water company to furnish water at the city hydrants has in view a benefit to the public that is incidental rather than immediate, an assumption of duty to the city and not to its inhabitants. Such is the ruling of the Supreme Court of the United States. German Alliance Ins. Co. v. Homewater Supply Co., 226 U.S. 220 , 33 S. Ct. 32 , 57 L. Ed. 195 , 42 L.R.A. (N.S.) 1000.

“If the plaintiff is to prevail, one who negligently omits to supply sufficient pressure to extinguish a fire started by another assumes an obligation to pay the ensuing damage, though the whole city is laid low. A promisor will not be deemed to have had in mind the assumption of a risk so overwhelming for any trivial reward.”

The only obligation on the part of the water company under the instant circumstances arose from its .contract with the municipality to provide water for the fighting of fires in the municipality. The parties never intended that, for a breach of such contracting obligation, a right of action, either ex contractu or ex delicto, would arise on the part of strangers to that contract. Whether averred or not, any duty must arise *230 from the water company-municipality agreement for the supply of water to fight fires and to any such agreement plaintiffs are strangers to whom no duty arose on the part of the water company. However, even if such a duty did arise, certainly the nonfeasance of any such contractual duty cannot furnish the basis of an action ex delicto.

Although severely rejected by the majority, the denial of recovery under the instant circumstances is also based on a sound public policy. The Supreme Court of New Jersey in Reimann v. Monmouth Consolidated Water Co., 9 N.J. 134 , 87 A. 2d 325 , well stated this public policy: “Water companies sell a commodity and their rates have been established and approved by the Board of Public Utility Commissioners upon that basis, not upon the assumption that, without an undertaking to that end, they are responsible for fire losses. A way of business has grown up on that understanding. . . . Water rates are uniform; they do not rise or fall with the inherent danger. If the principle for which appellant contends were the law there would be no predetermined limit of liability. There are large water companies and small water companies; companies with ample supply of water and companies with limited and inadequate supply and perhaps with inability to increase the water resources; companies of such size that a considerable verdict against them for a fire loss would bankrupt them or leave them insufficiently financed to meet the general needs of their communities. . . .

“If such a broad liability as that sought by the plaintiff were established, the ensuing litigation would doubtless be great. ... No one can foretell the degree of confusion which would follow so revolutionary a decision; a decision which would work backward as well as forward; it would unsettle the past as well as *231 be effective in tbe future.” 8 In my opinion, a sound public policy militates against a recovery in this case, although on sucb ground alone I would hésitate to base my decision in tbis case. See: Patton v. U.S., 281 U.S. 276 , 74 L. ed. 854, 50 S. Ct. 253 .

In my view, tbe rationale of Moch, German Alliance Insurance Co., Thompson v. Springfield Water Company, supra, and several Pennsylvania authorities 9 control tbe instant situation. Tbe present majority opinion marks a complete departure from well-settled principles in tbis area of tbe law not only in tbis Commonwealth but in a vast majority of jurisdictions in tbis country which have been presented with tbe instant problem. 10 Sucb a departure is completely unwarranted and unjustified.

Mr. Justice Cohen joins in tbis dissenting opinion.

Durham, Terrace v. Hellertown Borough Authority, 394 Pa. 623 , 148 A. 26 899 , aff’g. 16 Pa. D. & C. 2d 231 ; Helz v. Pittsburgh, 387 Pa. 169, 173 , 127 A. 2d 89 ; Lehigh Water Company’s Appeal, 102 Pa. 515, 528 ; City of Philadelphia v. Gilmartin, 71 Pa. 140 ; Penn Iron Co. Ltd. v. City of Lancaster, 25 Pa. Superior Ct. 478, 482, 483 .

The majority suggests that the case at bar falls within the rule in Jolly v. Monaca Borough, 216 Pa. 345 , 65 A. 809 . In Jolly , the sole issue was the right of a municipality, supplying water to its inhabitants for domestic use, to charge for such use; no question was therein raised as to the capacity in which a municipality acts when it provides water for fire-fighting purposes. See: Canavan v. Mechanicville, 229 N.Y. 473 , 128 N.E. 882, 883 .

Cf. Herlihy Mid-Continent Company v. Bay City, 293 F. 2d 383 .

German Alliance Insurance Co. v. Home Water Co., 226 U.S. 220, 227, 228 , 33 S. Ct. 32 ; McQuillin, Municipal Corporations (3rd ed. rev.), §§53.52, 53.53, 53.104, 53.105, 53.106 and cases therein cited.

The majority opinion states that Judge Cardozo “nodded” in Modi, in that, while he characterized the water company’s conduct as “negligent omission”, at the same time he failed to find any “breach of duty”. Judge Gabdozo declared in Modi that, even though there had been reckless or wanton negligence by the water company, there might be difficulty in finding liability in the absence of a breach of duty. It is obvious that it is the majority of this Court which now “nods” in its equation of “negligent omission” with “breach of duty”.

As examples of wliat might result from a contrary holding the Court noted a coal dealer, under contract to supply coal to a shop, would be liable to the shop’s customers if coal was not delivered, a goods manufacturer would be liable not only to the buyer but to those looking to the buyer for their sources of supply, etc. The Court noted: “The law does not spread its protection so far”. See also: Spiegler v. School District of City of New Rochelle, 242 N.Y.S. 2d 430 .

Evans v. Otis Elevator Co., 403 Pa. 13 , 168 A. 2d 573 , relied on by the majority, likewise does not aid the majority’s position. Cf. Wroblewski v. Otis Elevator Co., 193 N.Y.S. 2d 855, 856 .

See also: Miralago Corp. v. Village of Kenilworth, 290 Ill. App. 230 , 7 N.E. 2d 602, 607 ; Gilbertson v. City of Fairbanks, 262 E. 2d 734, 738, 739.

Grant v. City of Erie, 69 Pa. 420 ; Beck v. Kittanning Water Co., 8 Sadler 237 ; Stone v. Uniontown Water Co., 16 Pa. C.C. Rep. 329; St. Mary’s Greek Catholic Church of Taylor v. Scranton-Spring Brook Water Service Co., 51 Lacka. Jur. 227; Hudak v. Scranton-Spring Brook Water Service Co., 39 Pa. D. & C. 346 ; Hay v. Connellsville Water Co., 4 Pa. D. & C. 731 .

See: 62 A.L.R. 1205 . A contrary view is entertained in only three jurisdictions — Kentucky, Florida and North Carolina — ; only the latter two jurisdictions recognize a cause of action in tort in this situation.