DALTON H. COLE and O. H. MAUD, a Co-Partnership Doing Business as COLE & MAUD, Appellants,
ARIZONA EDISON COMPANY, INC., a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Pinal. Lee N. Stratton, Judge. Judgment affirmed.
Mr. Renz L. Jennings and Mr. Elmer Graham, for Appellants.
Messrs. Rawlins & Rawlins, for Appellee.
[53 Ariz. 142] LOCKWOOD, J.
This is an action against the defendant for damages plaintiffs claim by reason of the defendant's negligence in failing to have sufficient pressure in its mains and hydrants to extinguish a fire that destroyed their property in the incorporated town of Florence, Arizona. Defendant's general demurrer to the complaint was sustained and, plaintiffs not electing to amend, the case was dismissed. The question presented on this appeal is whether a cause of action was stated.
It is alleged that the defendant is a public service corporation, selling water for hire and profit
"Including the sale of water to the town of Florence among other things for the extinguishment of fires in [53 Ariz. 143] the prevention of the destruction of property and the protection of the public within said town limits against destruction of property by fire...;"
that the town of Florence was equipped with a fire department; that there was a water hydrant about one hundred yards from the scene of the fire; that the fire hose was laid and attached to the hydrant; that the defendant water company had failed to have sufficient pressure available in its water mains and hydrants to extinguish the fire, and on account of such failure plaintiffs' place of business was destroyed; that defendant had permitted its water lines or mains, used for fire extinguishment, to clog up with weeds, vegetation or other foreign substances so as to check the free run of the water, and had failed to keep sufficient pressure for extinguishing the fire; and
"that defendant is the successor in interest of the Peoples Arizona Gas and Electric Corporation, a corporation, which was on the 6th day of March, A.D. 1928 voted a franchise by a majority of the qualified electors voting at an election in said town of Florence... for the purpose of operating a water works plant... within the corporate limits or for use within the corporate limits of said town, for profit, in the sale and distribution of water... for domestic use of the citizens of said town and/or for public and domestic purposes, including water necessary for 'extinguishment of fires' within said town limits of said incorporated town."
The demurrer admits everything well pleaded in the complaint to be true. Construing the complaint liberally, it is, therefore, admitted that defendant is a public service corporation; that it was operating the water works of the town of Florence under a franchise from the town that required it to furnish to the citizens of the town domestic water and to the town water necessary to the "extinguishment of fires" within the town's boundaries; that in the instant case [53 Ariz. 144] the defendant was not able to furnish the water to the town by reason of insufficient pressure in the mains caused by defendant's negligence in permitting weeds or other foreign substances to accumulate in the mains and check the free run of water; and that plaintiffs' property was within the town and was destroyed for lack of sufficient pressure to force water on to plaintiffs' property.
If there be any liability on the part of the defendant company, it must have arisen from one of three things, (a) a breach of its corporate franchise, (b) a tort, or (c) a violation of a statutory duty. We will consider these three possible sources of liability in their order.
We have stated in Smith v. Normart, 51 Ariz. 134, 143, 75 P.2d 38, 42, 114 A.L.R. 1456:
"We have heretofore announced that we would follow the Restatement of the Law where we are not bound by the previous decisions of this court or by legislative enactment, feeling that by so doing uniformity of ...