The opinion of the court was delivered PER CURIAM.
We see no difference between this case and Reimann v. Monmouth Consolidated Water Co., 9 N.J. 134 (1952). The great weight of authority is in accord with that decision. Annotation, 62 A.L.R. 1205 (1929).
The question is a close one, but an existing rule of law should not be overturned unless its injustice is clear. We are not satisfied that Reimann is wrong in its overall application.
The judgment is accordingly affirmed.
HEHER, J. (dissenting).
I hold to the views expressed in my dissent in Reimann v. Monmouth Consolidated Water Co., 9 N.J. 134 , 152 (1952), that the pleaded liability for mere nonfeasance is not laid upon the defendant water company either by the common law, by statute or by contract, but that it is liable at common law for a positive act of negligent misfeasance; and since the complaint here charges misfeasance grounded in the reasonably foreseeable risk of harm to another, I would reverse the judgment as to that count, entered as it was under R.R. 4:58-3, on the premise that the complaint fails to state a claim upon which relief can be had.
JACOBS and FRANCIS, JJ., (dissenting).
Justices JACOBS and FRANCIS would reverse the judgment for the reasons expressed by the late Chief Justice Vanderbilt in his dissenting opinion in the Reimann case, 9 N.J. at page 140 et seq. See also, Seavey, "The Waterworks Cases and Stare Decisis," 66 Harv. L. Rev. 84 (1952).
For affirmance — Chief Justice WEINTRAUB, and Justices WACHENFELD, BURLING and PROCTOR — 4.
For reversal — Justices HEHER, JACOBS and FRANCIS — 3.