* a resident of the city. In making such con- * In this state, section 76, c. 4, Rev. St., empowers municipal corporations to "contract for a supply of water for municipal uses," but it was obviously not the design of this statute to authorize cities and towns to make contracts to indemnify individual owners for the loss of property by fire resulting from the neglect of its officials to furnish an adequate supply of water to extinguish it, and there is no suggestion in this case that any such express contract was in fact ever made or attempted to be made between the village corporation and the defendant water company. the hydrant in that vicinity. But the court say: "The plaintiff in this case had no contract with the defendant for a supply of water for the extinguishment of fires, hence it owed him no duty in this respect, and on the basis of such contract he had, of course, no cause of action. As to the contract with the borough, with that he had nothing to do. That was a matter between the municipality and the water company, and his interest in it is too remote to raise such a privity therein as would enable him to maintain this suit." It In Davis v. Clinton Waterworks Co., 54 Iowa, 59, 6 N. W. 126, 37 Am. Rep. 185, the plaintiff sought to recover the value of her buildings by fire, upon the ground that the loss resulted from the defendant's failure to perform its contract with the city to supply. water for the extinguishment of fires. was held that there was no such privity of contract between the plaintiff and the city, or between the plaintiff and the defendant water company, as would enable her to maintain an action against the water company upon the facts stated. In the opinion the court say: "The city, in exercise of its lawful authority to protect the property of the people, may cause water to be supplied for extinguishing fires, and for other objects demanded by the wants of the people. In the exercise of this authority, it contracts with defendant to supply the water demanded for these purposes. The plaintiff received benefits from the water thus supplied in common with all the people of the city. These benefits she received just as she does other benefits from the municipal government, as the benefits enjoyed on account of improved streets, peace and order enforced by police regulations, and the like. It cannot be claimed that the agents or officers of the city employed by the municipal government to supply water, improve the streets, or maintain good order are liable to a cítizen for loss or damages sustained by reason of the failure to perform their duties and obligations in this respect. They are employed by the city, and responsible alone to the city. The people must trust to the mu One of the earliest cases in which this question was directly involved was Nickerson v. Bridgeport Hydraulic Company, 46 Conn. 24, 33 Am. Rep. 1, which came before the Supreme Court of that state in 1878. Two of the counts in the declaration are strikingly similar to those in the case at bar, and the case has been cited above upon the question of pleading. The essential averments were that the water company had negligently failed to provide a supply of water for the hydrants to enable the city to perform a public duty which it owed to the plaintiffs and others to extinguish fires. In the opinion the court say: "The most that can be said is that the defendants were un-nicipal government to enforce the discharge der obligation to supply the hydrants with water. The city owed a public duty to the plaintiffs to extinguish their fire. The hydrants were not supplied with water, and so the city was unable to perform its duty. We think it clear that there was no contract relation between the defendants and the plaintiffs, and consequently no duty which can be the basis of a legal claim." In 1887 the question came before the Supreme Court of Pennsylvania in the case of Beck v. Kittanning Water Co. (Pa.) 11 Atl. 300. The defendant was under contract to supply the town and its residents with water. The plaintiff's brewery was destroyed by fire by reason of the neglect of the de of duties and obligations by the officers and agents of that government." Nickerson v. Bridgeport Co., supra, was one of the authorities cited in support of the decision. This doctrine was reaffirmed in Vanhorn v. Des Moines, 63 Iowa, 448, 19 N. W. 293, 50 Am. Rep. 750, and in Becker v. Keokuk Waterworks, 79 Iowa, 419, 44 N. W. 694, 18 Am. St. Rep. 377, although in the Des Moines Case the city had taken a contract from the company to protect it from liability which might arise from the negligence of the company, and in the latter case it was provided by ordinance that the water company should be liable for all injuries to persons or property caused by its negligence. ton Water Co., 119 Mo. 304, 24 S. W. 784, 23 L. R. A. 146, 41 Am. St. Rep. 654 (1893), where it was held that a water company that contracts with a town to furnish an adequate supply of water to extinguish fires and agrees to be liable for damages from fire resulting from its negligence cannot be sued on the contract by a citizen, though he and other citizens pay a special tax to the company under the contract. In the opinion the court give the following reasons, among others: "A municipal corporation, in making contracts for the benefit of its citizens, acts for them collectively, and for all of them, in every act, and the relation of privity is not, and cannot be, introduced into such contracts by reason of taxpaying or the discharge of any civic duty by any individual citizen." "The town had no authority to make a contract to indemnify the plaintiff for the loss of his property by fire resulting from the neglect of its agents or servants to furnish an adequate supply of water to put it out, and therefore could not make such a contract that would be binding on another." | It is true that special reference is made in the opinion to the fact that this was an action on the contract. But the existence of a duty to the plaintiff was an indispensable element of any legal claim. Negligence which consists merely in the breach of a contract will not afford ground for an action by any one who is not a party to the contract, and not a person for whose benefit the contract was avowedly made. Heaven v. Pender, L. R. 11 Q. B. Div. 503; Nickerson v. Bridgeport Water Co., 46 Conn. 24, 33 Am. Rep. 1; Shearman & Redfield on Neg., 116. "The violation of a contract entered into with the public, the breach being by mere omission or nonfeasance, is no tort, direct or indirect, to the private property of an individual, though he be a taxpayer to the government. Unless made so by statute, the city is not liable for failing to protect the inhabitants against the destruction of property by fire." Fowler v. Athens City Waterworks Co., 83 Ga. 219, 9 S. E. 673, 20 Am. St. Rep. 313; House v. Houston Waterworks Co., 88 Tex. 233, 31 S. W. 179, 28 L. R. A. 532. The question arose in Wisconsin in 1892, in the case of Britton v. Green Bay Waterworks Company, 81 Wis. 48, 51 N. W. 84, 29 Am. St. Rep. 856, and it was held that a water company, under contract with a municipal corporation to furnish water for the extinguishment of fires, does not become liable to suit by a private citizen for loss of his property by fire owing to the negligence of the company in not furnishing a sufficient supply of water. It is said in the opinion: "It seems to be impossible to find any sound legal principle on which the liability of the defendant to the plaintiff can be predicated. ** Could the defend ** * contract with the city it was contracting with or incurring liability to each of its inhabitants, and that if it might be sued by each one indirectly and separately? Is it a hardship that the plaintiff cannot recover in such a case? So it is in case; the city is sued for neglect of its duty in not furnishing the necessary machinery for putting out fires. It is not greater hardship in one case than in the other; the duty of furnishing water and using it to put out fires still remains in the city. That duty has not been, if it could be, transferred to the company. The company is bound only by its contract, and liable to the city alone as the other contracting party." In 1894 the question came before the Supreme Court of Indiana in Fitch v. Seymour Company, 139 Ind. 214, 37 N. E. 982, 47 Am. St. Rep. 258, and upon demurrer to the complaint charging facts similar to those in Britton v. Water Co., 81 Wis. 48, 51 N. W. 84, 29 Am. St. Rep. 856, it was held that the water company had undertaken no public duty which would make it liable to the plaintiff, and that the plaintiff had no privity in the contract of the city with the water company. In the very recent and carefully considered case of Lovejoy v. Bessemer Waterworks Co., 146 Ala. 374, 41 South. 76, 6 L. R. A. (N. S.) 429 (1906), the court reached the same conclusion, citing 18 decisions in support of it. The opinion there says: "The overwhelming weight of authority is against the right of the plaintiff to maintain this action. The reason why he may not do so is that there is a want of privity between him and the defendant which disables him from suing for a breach of the contract or for the breach of duty growing out of the contract. It is impossible at this late day to say anything new upon the subject, and it would be affectation to attempt any elaborate discussion of the question involved." "We recognize that the absence of a remedy by suit for damages for a failure by a water company to furnish water for tire purposes, according to its contract with a city, leaves the subject 'in an extremely unsatisfactory position,' as stated in the note to Britton v. Waterworks Company, 29 Am. St. Rep. 856, 863, yet, as the learned annotator suggests, 'the only security would seem to be in legislation, or in the incorporation of some suitable provision in future contracts of this description, whenever the taxpayer desires to reserve a personal remedy against the water company.' It is not the function of a court to make law to fit hard cases." See, also, Allen & C. Mfg. Co. v. Waterworks Co., 113 La. 1091, 37 South. 980, 68 L. R. A. 650, 104 Am. St. Rep. 525; Eaton v. Waterworks Co., 37 Neb. 546, 56 N. W. 201, 21 L. R. A. 653, 40 Am. St. Rep. 510; Bush v. Artesian Water Co., 4 Idaho, 618, * v. Light H. & W. Co., 78 Miss. 389, 28 South. 877; Ferris v. Water Co., 16 Nev. 44, 40 Am. Rep. 485. In the federal courts the adjudications have been to the same effect. In the recent case of Metropolitan Trust Co. v. Topeka Water Co. (C. C.) 132 Fed. 702, the court said: "The question of the liability of a water company to respond in damages to a resident of a city, the owner of property destroyed by fire, on account of the failure of the water company to fulfill its contract with the city in furnishing an adequate supply of water and a stipulated pressure for the extinguishment of fires, has many times received the consideration of the courts of last resort in this country, and the almost universal holding is that there is no such privity of contract between the individual citizen, though a taxpayer who contributes to the fund disbursed by the city in the payment of hydrant rentals, and the water company, as will authorize any recovery for damages so sustained. Boston Safe Deposit & Trust Co. v. Salem Water Co. (C. C.) 94 Fed. 238." But the proposition advanced by the plaintiffs would require water companies to assume, to some extent, the responsibility of insurers, and it does not satisfactorily appear that such a doctrine would be more in harmony with considerations of public policy, or more consonant with reason and justice, than the established rule. Ample opportunities are already afforded for all property owners to obtain insurance against losses by fire, and the assumption of such risks by water companies, even in a modified degree, would result in double insurance and largely increase water rates. Furthermore, capital would not readily seek investments in enterprises involving a public service exposed to incalculable hazards and constant litigation. In the practical administration of the law the established rule has not been found the cause of extraordinary hardships or the occasion for exceptional complaints. The entry must accordingly be: Exceptions overruled. Demurrer sustained. Declaration adjudged insufficient. (109 Md. 100) PALATINE INS. CO. v. O'BRIEN. O'BRIEN v. PALATINE INS. CO. (two cases). On the other hand, three cases are cited in support of the plaintiff's contention that such an action for negligence is maintainable in favor of an individual owner of property against a water company under contract with the municipality to furnish a (Court of Appeals of Maryland. Dec. 2, 1908.) 1. INSURANCE (§ 507*)-RENTS-POLICY-CONSTRUCTION-EXTENT OF LIABILITY. Under a policy insuring rents, but requir insured to rebuild, and providing that insured should not be liable beyond the actual value destroyed by fire for loss caused by ordinance or law regulating construction or repair of buildings or by interruption of business or otherwise, insurer is not liable for loss of rent building, pending ordinance relocating street caused by the city authorities in delaying relines. supply of water. The first case in which [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1283; Dec. Dig. § 507.*] 2. INSURANCE (§ 507*)-RENTS-POLICY-CONSTRUCTION-EXTENT OF LIABILITY—“INTERRUPTION OF BUSINESS." Under a policy insuring rents, but requiring insured to rebuild as soon as the nature of the case would admit, and providing that insurer should not be liable for loss caused by "interruption of business," insurer is not liable for loss of rent from interruption of business caused by delays in rebuilding resulting from the fall of débris of the fire throughout the burnt district. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 1283; Dec. Dig. § 507.*] 3. INSURANCE (§ 646*)-RENTS-POSSESSIONPRESUMPTIONS. Under a policy insuring rents, but requir insured to rebuild as soon as the nature of the case would admit, it must be presumed, in the absence of proof to the contrary, that insured took possession of the premises to rebuild as soon after the fire as possible. These numerous expressions of judicial opinion have been so nearly unanimous, and the conclusions reached by so many courts of eminent respectability and authority have been so uniformly opposed to the maintenance of such actions by individual prop-ing erty owners, that the rule may properly be regarded as settled law, and, while this court has never been unmindful of the flexibility and creative power of the law to meet the progressive developments of the age, it has never hastily or inconsiderately reject-4. ed principles established by sound reason or doctrines sanctioned by long experience. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1660, 1665; Dec. Dig. § 646.*] INSURANCE (§ 615*) — RENTS — LIABILITY— ESTOPPEL. Insurer of rents precluded itself from claiming that no rent was due under the policies sued on by paying into court sums of money claim- [amount, if any, of rents actually lost by the ed to cover insurer's liability. [Ed. Note. For other cases, see Insurance, Actions by Katherine T. O'Brien against the Palatine Insurance Company. From the judgments both parties appeal. See, also, 68 Atl, 484. Affirmed. plaintiff by reason of the destruction by fire of the buildings mentioned in the evidence, and therefore, under the pleadings and the evidence in these actions, the plaintiff can only recover nominal damages." Refused. (2) "That the alleged action or nonaction of the Baltimore city authorities with regard to establishing grades and building lines on German street, between Charles The following prayers were requested by and Light streets, and the alleged refusal of plaintiff: (1) "The plaintiff prays the court to instruct the jury that the proper measure of damages in this case is the actual loss of such rents, if any, from the property described in the evidence, that they shall find the plaintiff has sustained, not exceeding the sum insured, from the date of the fire until such time as the premises could be restored or rebuilt as promptly as the nature of the case would admit, with interest on such rents after 60 days from the time proofs of loss were submitted to the defendant, if they so find such proofs of loss to have been submitted; provided the sum found shall be in excess of the amount paid into court in this case, to wit, $1,150." Refused. the building inspector to issue permits for the erection of buildings at the place in question, are not, under the terms of the policies offered in evidence in these cases, to be considered by the jury in arriving at their verdict, and the delays, if any. that are caused by the same or any of them do not entitle the plaintiff to recover, under the pleadings and evidence in these cases, the amount, if any, of rents for the time covered by such delays." Granted. (3) "That under the terms of the policies offered in evidence the plaintiff is not entitled to recover for any loss or damage by tire, other than direct loss or damage by fire to the property in said policies described; and therefore, under the pleadings and evidence in these cases, the plaintiff is not entitled to recover the amount of alleged rents of the plaintiff's premises in question for the by other reasons than the destruction by fire of the buildings on her said premises, even though the jury shall find that such de lays, if any, were due to the obstruction of the neighboring streets, alleys, and ground as a result of the destruction by fire of buildings and property belonging to persons other than plaintiff, and that the fire that destroy (2) "The plaintiff prays the court to instruct the jury that the proper measure of damages in this case is the actual loss of such rents, if any, from the property describ-time of alleged delays in rebuilding caused ed in the evidence that they shall find the plaintiff has sustained, not exceeding the sum insured, from the date of the fire until such time as the premises could be restored or rebuilt as promptly as the nature of the case would admit, with interest on such rents after 60 days from the time proofs of loss were submitted to the defendant, if they so find such proofs of loss to have been sub-ed such buildings on the property of others, mitted; provided the sum found shall be in excess of the amount paid into court in this case, to wit, $1,150; but the refusal of the city authorities to allow the plaintiff to rebuild for a certain time, as set out in the evidence, if they find such refusal, is not a circumstance proper to be considered in arriving at such loss of rent." Refused. (3) "The plaintiff prays the court to instruct the jury that there is no evidence in this case of any arbitration and award, and no consideration shall be given to the arbitration and award set aside and declared void by the United States Circuit Court." Conceded. (4) "That, if the jury find for the plaintiff in excess of the sum of $1,150 paid into court in this cause, they are to allow interest on the sum so found from 60 days after proofs of loss were submitted to the date of this trial, if they find such proofs of loss to have been submitted." Refused. Defendant's prayers: (1) "That there has been offered in these actions no legally sufficient evidence of the as well as those of the plaintiff, was part of a general conflagration that swept over a large portion of the city of Baltimore." Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, THOMAS, WORTHINGTON, and HENRY, JJ. John J. Donaldson, for Palatine Ins. Co. Hyland P. Stewart, for Katherine T. O'Brien. PEARCE, J. This is the second time these cases have been before this court, being argued at the October term, 1907, and decided January 8, 1908, the opinion being reported in 68 Atl. 484. They are two actions of assumpsit brought by Katherine T. O'Brien against the Palatine Insurance Company, an English corporation, upon two separate policies insuring certain rents issuing out of premises belonging to and leased by Mrs. O'Brien. The buildings upon these premises were destroyed by fire on February 7, 1904, when a large part of the city of Baltimore was swept by the great conflagration then the loss of rents shall be determined by The plaintiff did not rebuild the same character of buildings as were destroyed by the fire. These were distinct buildings, described in the respective policies. In rebuilding, she erected one building covering the site of the two previous buildings. Until these mat of that date and the day following. The rents payable at the time of the fire by the lessees of these premises were $230 per month from the property described in one of be no abandonment to this company." these policies, and $85 per month from that "This company shall not be liable beyond described in the other policy, and the policies the actual value destroyed by fire, for loss were identical in their terms and provisions, occasioned by ordinance or law regulating except that in the first policy mentioned construction or repair of buildings, or by inabove the risk was limited to $1,800, and interruption of business, manufacturing prothe last mentioned to $1,040. The plaintiff cesses, or otherwise." claimed to recover under each the full amount insured. The defendant pleaded the two general issue pleas in assumpsit, and two special pleas, one of which set up an arbitration and award, but this award was declared void by a decree of the Circuit Court of the United States for the District of MaryAfter the fire of February 7th and 8th, cerland, and the defendant insurance company tain ordinances were passed for the imwas enjoined from setting it up in an action provement of the city in the burnt district. on these policies. In the former appeal, a The lines of the streets and of the property prayer granted by the lower court, taking holders were obliterated by the great fire. from the jury the consideration of this Surveys were necessary to re-establish these award, was held to be properly granted, and lines, and new grades of the streets were that question is not involved in this appeal. authorized and directed. In the other special plea, in the first case, ters were determined, building permits could the defendant alleged "that since the date not be obtained, and the plaintiff, with alof said award it has always been, and now leged due diligence, did not, and could not, is, and so tenders itself, ready and willing to obtain her permit to rebuild until Decempay said plaintiff such sum as, but for the ber 20, 1904. The main question involved destruction of said building by fire, would in the former appeal was whether the delay have been payable to said plaintiff by her in obtaining this permit prevented the plaintenants of said building; that the amount of tiff's recovery for the period covered by that said rents so as aforesaid for the period of delay. The lower court held that delay was three months (that being the period by the a circumstance proper to be considered by award determined to be a reasonable time the jury in determining the loss of rent; for rebuilding), and for the months of Feb-rent occasioned by the action of the city aubut this court, on appeal, held that loss of ruary and March, was and is the sum of $1,- thorities in delaying rebuilding was forbid150, which, together with legal interest there- den by the clause of the policy we have on from the date of each installment of rent transcribed, and we cannot hesitate to reto the day of filing these pleas, and the plaintiff's costs accrued to said last-mentioned date, now tenders to the plaintiff, and pays here into court, in full satisfaction and discharge of plaintiff's alleged cause of action." There was a similar plea in the second case, except that the sum paid into court thereunder was $425, and in each case the plaintiff replied to the plea mentioned that the sum paid into court was not sufficient to satisfy her claim in respect of the matters to which the plea was pleaded, and issue was joined on this replication. Those trials resulted in a verdict for plaintiff, in one case of $2,088, and in the other for $1,200.40, and from the judgments entered thereon the former appeals were taken. There was only one exception in each appeal, to the ruling on the prayers, and both judgments were reversed on appeal. affirm this. Upon the second trial of these two cases, verdicts were rendered in each case for the exact amount paid into court in each case, and from the judgments entered on these verdicts both parties have appealed, so that there are four appeals embraced in the record, and, as on the former appeals, the only exception in each case is to the ruling on the prayers. At these second trials no witnesses were examined, but by agreement the stenographer's notes of the first trial were read to the jury, and all the exhibits offered in evidence at the first trial were again offered and admitted. The bill of exceptions in the present appeals is identical with that in the former appeals, word for word, and it covers 35 pages of the record in the present appeals. These 35 pages might and should have been saved by agreement to re These policies contained the following pro- fer for them to the former record. Counsel visions: "The assured agrees to rebuild in as short a time as the nature of the case will admit. Loss to be computed from the time of the fire and to cease upon the premises again becoming tenantable. And in case the as for Mrs. O'Brien, in his brief, states that this was inserted "at the request of the insurance company, and against the protest of the plaintiff below," and this statement was not contradicted, either in the brief for the insurance company, or at the oral argument |