Arnold v. Alabama Power Co. , 206 Ala. 506 ( 1921 )

The suit was for breach of duty by a public service corporation to continue to furnish electric current to plaintiff's residence.

In Birmingham Ry., L. P. Co. v. Littleton, 201 Ala. 141,147, 77 So. 565, 571, this court said:

"* * * In an action against a public service company for failure to serve an applicant entitled to service, it is necessary to allege: (1) That the defendant was engaged in the discharge of a public service; (2) that the plaintiff came within the class of people whom the defendant was bound to serve; (3) that the plaintiff had performed all reasonable conditions precedent entitling him to that service; (4) that the defendant wrongly refused to furnish the services; and (5) that the plaintiff had thereby been damaged."

If the duty of defendant to serve plaintiff did not arise out of contract merely, but out of its general status and relation as a public service corporation, serving individuals of the municipality of Anniston, and plaintiff as an individual of that municipality was entitled to such service, the complaint should allege facts showing that the contract or demand or application for service was made by plaintiff with or on defendant, and showing the performance by plaintiff of all conditions precedent, such as making tender of advance charges required, the payment of accrued bills, the required consideration for the service, etc. For failure of averment in such respects the several counts of the complaint are defective.

The contract or application for the service, exhibited as a part of each count, contained provisions for an advance charge or deposit with the company (appearing in the exhibit as a blank and averred to be $2.50) and for an additional deposit by the consumer from time to time as the company might deem necessary for its protection; that such deposit should in no way affect the company's right "arising from nonpayment of bills" as provided; that at any time the consumer fails or refuses to pay any bill for services or material furnished within 10 days after the rendition of the same the company may at its option discontinue its service on the premises on 3 days' notice "as herein provided," and such provision being:

"Any notice given hereunder shall be in writing, addressed to the consumer at said premises, or at any other address filed in writing by the consumer with the company, and mailed in ordinary course of the company's business, or by the consumer to the company by mail addressed to the company, or by either party by serving the same personally upon the other, or by leaving same at said premises."

The averment of failure of notice of the amount of the outstanding or accrued bill for the month of April, 1919, and up to May 28, 1919, for which plaintiff had not received bill, was not sufficient to show that a notice was not given by defendant as provided by foregoing provisions of the contract or application for service on the part of plaintiff, and by which he was bound.

The averment of the several counts that the advance deposit of $2.50 made by the plaintiff was an amount equivalent to or exceeding defendant's accrued or past-due bill for electric current furnished for the months of April and May was not sufficient to show payment or tender of the amount due, or that plaintiff stood ready and willing to pay or tender the same; the contract provision being that the defendant, on default of plaintiff in the payment of said amount due, "may" apply the deposit upon any unpaid bill or bills of plaintiff. There is nothing in the contract or application for service signed by plaintiff and exhibited in his pleadings which require the defendant to apply such deposit "upon any unpaid bill or bills" by the plaintiff-consumer, but the reasons for the deposit would prevent such application in a case where there was a continuance of service.

We are of opinion that the trial court properly sustained demurrer to the several counts of the complaint for the failure to aver facts showing that he was not in default in the payment of service theretofore rendered, and that the defendant had wrongfully refused to extend, continue, or furnish its service without full compliance on plaintiff's part by payment of the accrued bill in question. It would subserve no good purpose, nor is it necessary, to discuss whether the contract regulations for advance charges for service or of notice of discontinuance of service for nonpayment of charges, etc., were reasonable. This subject was adverted to in Hodge v. Alabama Water Co., 205 Ala. 472,88 So. 585.

The judgment of the circuit court is affirmed.

Affirmed.

ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.