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THE GREEN BAG

liability is so obvious that it hardly needs extended comment. Any departure from it would make every sort of human activity, whether founded upon contract or tort, highly speculative in charac ter. The amount of liability which might be in curred for the failure to perform any obligation would remain always uncertain and too frequently incalculable. An infinity of suits must not infre quently ensue upon the breach of an obligation and the danger of false claims be enormously in creased. Individuals would be forced on every occasion to have relations with persons toward whom they would not voluntarily assume them. The application of the general principle announced is decisive in the principal case. If the perform ance by the water company in furnishing water for fire protection purposes (whether regarded as pur suant to its contract or pursuant to a mandate raised by law, apart from the contract, because it is a public service corporation engaged in furnishing a public service ) runs directly and physically to the inhabitant, then the water company may possibly be liable in contract. It certainly would be liable in tort. On the other hand, if the performance of the water company runs directly and physically to the municipality alone, then the inhabitant is only incidentally or collaterally benefited and there can by no possibility be a recovery either in contract or in tort. It is submitted that the latter view is the only possible one under the facts of the principal case. The water company has not been negligent in failing to give water service directly to the indi vidual inhabitants, including the plaintiff. On the contrary, the water company was dealing directly and entirely with the municipal corporation. The municipality undertook to give fire protection. Pursuant to this design it organized a fire depart ment. To make that fire department effective it needed hose, fire engines, hose carts, and water delivered at hydrants. All these items stand on the same footing precisely. All of them are actually used by the city itself in the course of running its fire department. All of them are necessary to make the protection given by the fire department effective. The water is no more important than the hose. Even in contracting with the water com pany that it furnish the water at a high pressure so that the necessity of purchasing steam fire engines is avoided, the municipality is simply arranging for a necessary element to make its fire department effective. The water company under such a con tract no more renders service direct to the inhabi tants than does the corporation which makes a business of selling fire hose, fire alarms, and fire engines. In short, while the water company is a public service corporation which might in fact enter the public calling of furnishing water for fire pro

tection to the inhabitants directly, for use by the inhabitants in person, yet it has not in fact done so when it merely undertakes to furnish the municipal corporation with water or fire pressure as a part of the equipment of the municipal fire department. Twenty-three cases arising in twenty jurisdictions and involving the same point as the principal case, have resolved the problem of liability in favor of the defendant. (Liability of water companies for fire losses, "Michigan Law Review," May, 1905.) In only one was the decision in any way confined to the question of liability in contract. (Howsmon v. Trenton Water Co., 119 Mo. 304. 24 S. W. 784.) In all the others any action, whether in tort or in contract, was denied. In all but two the pleading was under a code, and it made no difference what the form of the action was, whether contract or tort, and in all of them the plaintiff failed because he had no cause of action upon any theory. In some cases the court considered both the theory of contract and of tort. (Fowler v. Athens City Water Works, 83 Ga. 219, 9 S. E. 673 (1889); House v. Houston Water Works Co., 88 Tex. 233, 31 S. W. 179, 28 L. R. A. 532; Britton v. Green Bay Water Works, 81 Wis. 48, 51 N. W. 84 (1902); Fitch v. Seymour Water Co., 139 Ind. 214, 37 N. E. 982 (1894); Nickerson v. Bridgeport Hydraulic Co., 46 Conn. 24 (1878); Nichol v. Huntington Water Co., S3 West] Va. 348, 44 S. E. 290 (1903).) In some the court was indifferent to terminology. (Wainwright v. Queens Co. Water Co., 78 Hun. r46, 28 N. Y. Supp. 987 (N. Y. Supreme Ct. 1894); Beck v. Kittanning Water Co., 11 Atl. 300 (Pa. 1887); Stone v. Unionton Water Co., 4 Pa. Dist. Repts. 431 (1895); Foster v. Look out Water Co., 3 Lea 42 (Tenn., 1879); Wilkinson v. Light, Heat & Water Co., 78 Miss. 389, 28 So. 877 (1900); Bush v. Artesian Hot & Cold Water Co., 4 Idaho 618, 43 Pac. 69 (1895 ); Mott v. Cherryvale Water Co., 48 Kan. 12, 28 Pac. 989 (1892); Town of Ukiah City v. Ukiah Water' & Imp. Co., 75 Pac. 773 (Cal. 1904).) In others still the court assumed that if there was any cause of action it must be in contract. (Ferris v. Carson Water Co., 16 Nev. 44 (1881); Davis v. Clinton Water Works Co., 54 la. 59 (1880); Becker v. Keokuk Water Works, 79 la. 419; Blunk v. Dennison Water Sup ply Co., 73 N. E. 210 (Ohio, 1905).) In the two jurisdictions which had a common law system of pleading the action was on the case in tort for dam ages. In both a demurrer to the declaration was sustained, the court considering whether any action lay either in contract or tort. (Nickerson v. Bridge port Hydraulic Co., 46 Conn., 24 (1878); Nichol v. Huntington Water Co., 53 West Va. 348, 44 S. E. 290 (1903).) A recent case in Louisiana (Allen & Curry Mfg. Co. v. Shreveport Water Works Co., 113