The Pensacola journal. (Pensacola, Fla.) 1898-1985, 1910-04-17
YALE LAW JOURNAL ON
FLORIDA COURT DECISION

YALE LAW JOURNAL ON
FLORIDA COURT DECISION
The April Yale Law Journal con-
tains a very able and luminous COM
ment upon the case CT Woodberry VS..
Tampa Water Works Company, de-
cided by the supreme court Of Florida
last year. The court announced the
rule that a waterworks company is a
public service corporation and as such
is liable in damages not as an insurer
but for the negligent performance of
its public duties to those proximately
injured thereby, and that where a wa
terwOrks corporation exercises public
franchises and uses the streets for
laying its pipes, etc, and under con-
tract with a city actually undertakes,
for a stated consideration to be paid
by special tax levy, to furnish and
keep water in the pipes to be used in
eXtinguishing fires upon property in
the city, and property is destroyed as
a pToximate result OF the negligent
failure of the water company to fur
nish water as agreed or as required by
law the owner of the property so de-
stroyed may, in an action ex contractu
or ex delictO, recover from the water
works company damages to compen-
safe for such loss.
The Florida rule has been widely
commented on and pointedly criticised
as being judicial legislation but this
objection is obviously not tenable be-
cause practically all the duties and
liabilities of public service corpora
tions and others are not prescribed by
statute, but are developed by the
courts in applying the principles of the
common law.
The supreme court Of the United
States and the supreme courts of
North Carolina and Kentucky have
announced rules similar TO the Florida
rule. But in a majority of the states
of the union it is held that an indi-
vidual cannot recover damages from
water company for fire losses caused
by lack of water, upon the theory that
as the contract is between the city
and the water works company, there is
no privity of contract between the wa
ter company and the individual prap-
erty owners of the city, and that in
the absence of a contract relation with
the city an individual has no right of
action, though he has suffered loss by
the negligence of the water company.
Approves Florida Rule.
In approving the Florida rule, the
Yale Law Journal says: "Of course
there is no privity of contract between
the citizen and the water company.
Privity of contract may be defined IS
the relation existing between
promisor and a promisee. The citizen
! is not a promisee. 1t is be-
yond question that the courts have
power to recognize and enforce duties
in favor of persons who are not
| Promises. That it is gener-
ally felt by the courts that the bene-
| ficiary of contract between two
others should have a remedy, is amply
! attested by the decisions. =
I The individual property owners are In
fact the sole beneficiaries of the
promise of the water company to sup
| ply sufficient water to put out fires in
! private property. " If thew
have no remedy against the water
company, they have paid
their water tax merely in return for
the pleasure Of supposing that they
would get wafer when the peril comes;
and the water company may break its
| contract without being liable to pay
substantial damages to ANYBODY.
When the Florida court holds
a water company liable to citizen for
negligent failure to supply sufficient
water to put out fire, and decides
| that such company is under a public
| duty the breach of which is a tort, if
is not usurpfng authority. The correct
ness of its decision is to be tested bv
principles of justice, eXpediency and
public policy. With the cues
ton of the expediency and Justice and
policy of the Florida rule, this article
cannot undertake to deal exhaustivelv:
| but II is believed that the rule is CON
slstent with them, and that the CON
trary rule is not. The anaIo-
gies of the low really support, rather
than weaken, the Florida decision.
That water companies are public SER
vice corporations is beyond question.
They have a necessary MONOPOLY are
given valuable privileges. and must
be subject to public control through
both the legislatures and the courts.
The citizen who relies upon
a water company for service and pro-
lection, and who pays taxes for such
service and protection, is in a per
soral relation with the water COM
pany. The company's mains and pipes
run through his property, or near
enough to serve him. The
water company owes a duty to all the
inhabitants from whom its privileges
and compensation are derived, who
! rely upon it for public service. as it
perfectly well knows, and whom it
has undertaken to serve. The COM
mon law is quite capable Of imposing