German Alliance Insurance Company v. Home Water Supply Company
'The Spartan Mills' owned a number of houses in Spartanburg, South Carolina. They were damaged by fire on March 25, 1907. The German Alliance Company, which had insured the buildings, paid $68,000, the amount of the loss, took from the mills an assignment 'of all claims and demands against any person arising from or connected with the loss or damage,' and brought suit, in the United States court for the district of South Carolina, against the Home Water Supply Company, on the ground that the fire could easily have been extinguished and the damage prevented if the water company had complied with its contract and duty to furnish the inhabitants of the city with water for fire protection.

The complaint alleged that on February 14, 1900, the city council adopted an ordinance, ratifying a contract, previously prepared, between the city and the water company, by which the latter was empowered, for a term of thirty-three years, to lay and maintain pipes in the streets and operate waterworks with which 'to supply the city and its inhabitants with water suitable for fire, sanitary, and domestic purposes.' The city agreed to use the hydrants FOR THE EXTINGUISHMENT OF FIRES AND SPRINkling purposes only; to make good any injury which might happen to them when used by its fire department; to pay rent for said fire protection, for the term of ten years, at the rate of $40 per year for each hydrant, and annually to levy a tax sufficient to pay what should become due under the contract.

The company agreed to lay at least 6 miles of pipe, but on sixty days' notice from the city would lay additional pipes and install hydrants, not less than ten to the mile, for each of which the city was to pay $40 per year.

The company agreed to keep all hydrants supplied with water for fire protection, and to maintain a height of at least 70 feet of water in the standpipe. If any hydrant remained out of order for more than twenty-four hours, after notice, the company was to pay the city $7 per week while each hydrant was unfit for use.

It was further alleged that in 1905 and 1906 the city ordered the company to 'put in certain hydrants with connecting pipes,' 'which order, if obeyed, would have carried water protection to within about 200 feet of the building which first caught fire on March 25, 1907, instead of 650 feet, which was the distance of the nearest hydrant to the said fire on said day; that in violation of its duty and obligation to adequately protect the property from fire, and in defiance of the order of council, the defendant failed to make such extensions, and as a direct result there was no plug near enough to furnish water to extinguish said fire,-all due to the defendant's culpable and wilful negligence and disregard of duty and obligations to said city and its inhabitants.'

Other breaches were charged, in laying 4-inch instead of 6-inch pipe; in neglecting to install the electric cut-off; and 'in failing absolutely to furnish water with which to extinguish such fire and prevent its spreading to other houses.'

The defendant made no question as to the right of the insurance company to maintain the action if the Spartan Mills could have done so, but filed a general demurrer which was sustained July 14, 1908. That judgment was affirmed November 4, 1909, by the circuit court of appeals (42 L.R.A. [N.S.] 1005, 99 C. C. A. 258, 174 Fed. 764), and the case was brought here by writ of certiorari.

Messrs. Hartwell cabell and Stanyarne Wilson for petitioner.

[Argument of Counsel from pages 223-227 intentionally omitted]

Messrs. I. A. Phifer, Ralph K. Carson, and Thomas Ruffin for respondent.

Mr. Justice Lamer, after making the foregoing statement of facts, delivered the opinion of the court: 

Notes
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