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1. As municipalities have increasingly taken over the business of supplying public services to their residents, cases like the principal case have of course gradually disappeared from the reports. See, however, Doyle v. South Pittsburgh Water Co., 414 Pa. 199, 199 A.2d B75 (1964), a fire-loss case in which it was held that the complaint stated a good cause of action against the Water Company. With respect to Cardozo's opinion in the Moch case, Musmanno, J., commented that "at this point Homer nodded." (414 Pa. at 214.) For nearly a hundred years, however, there was a great deal of litigation of this' type. In most situations the municipal residents were, more often than not, allowed to sue as third party beneficiaries of the contracts. In most states, however, the actions against privately owned water companies, typically for fire loss, were not allowed, either on contract or tort theory. Corbin suggests that the result in the water company cases may have been in part "accidental" in that "the earlier water cases were brought during a period of temporary reaction against the rule in Lawrence v. Fox," as illustrated by Vrooman v. Turner, supra p. 1346. (4 Corbin §§805, 806, 827.)3
2. Another possible explanation of the judicial reluctance to allow actions against water companies for fire loss might be the universality of fire insurance covering residential and business property. However, the fact that the property owner is insured is not necessarily the end of the matter. It could be argued (though few courts have accepted this view) that the prudent property owner should be entitled to collect both his insurance and his damages. Or, alternatively, that the fire insurance company, after paying the loss, should be subrogated to the insured's right to collect damages from the water company. On the question of the insurer's subrogation to the insured's rights, in contract or in tort, against third parties, see 2 Harper & James, Torts §§25.19-25.23 (1974); 2 G. Gilmore, Security Interests in Personal Property §42.7.1 (1965).
February 15, 2015
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