Mobile Electric Co. v. Nelson , 209 Ala. 554 ( 1923 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The suit is against a public service corporation for damages caused by cutting off electric current from plaintiff's residence, to which current had been theretofore furnished by defendant.

The trial was upon counts 1 and 2 as last amended, pleas of the general issue (1 and 2), and special plea setting out provisions of the contract for the service, which, it is averred, authorized the defendant to cut out current for cause averred in the plea.

Defendant filed several grounds of demurrer to said counts that were overruled. It is insisted that the demurrer should have been sustained, whether the nature of the counts was that of breach of contract, or the breach of duty to plaintiff by the public service corporation charged therewith to plaintiff as a part of the general public.

In B. R., L. P. Co. v. Littleton, 201 Ala. 141, 145,77 So. 565, the question for decision was raised by demurrer to a count that was in case against a public service corporation furnishing, for a reward in a given community under a franchise from the city, electric lighting, etc., and for the refusal to furnish the same to a resident of that city "where no special contract between the plaintiff and the defendant corporation is alleged," etc. The decision proceeded on the assumption that the refusal to serve was to an applicant entitled to service, and of such a count it was held that in an action against a public service company for failure to serve an applicantentitled 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 wrongfully refused to furnish the service; and (5) that the plaintiff had thereby been damaged. It will be noted that Littleton's Case was not for a breach of duty in the discontinuance of service to a consumer of such company; nor was it founded upon the breach of a contract between a public service corporation and the consumer as a resident of the municipality in question; but was for the breach of duty in failing to give the service on due application therefor, etc.

In the case of Arnold v. Ala. Power Co., 206 Ala. 506,90 So. 909, the suit was for a breach of contract by a public service corporation to continue to furnish service to a resident of the city. The contract exhibited contained provisions for an advance charge or deposit with the company, and for an additional deposit by the consumer from time to time as might be reasonable or necessary for the protection of the company; that such deposit should in no way affect the company's right; and it was averred in the complaint that at any time the consumer failed or refused to pay the bills for service or materials furnished within the specified time after rendition of the same, the company may discontinue the service on the notice provided in the contract. The holding was that the trial court had properly sustained demurrer to the complaint for failure to aver facts showing that plaintiff was not in default in the payment for service theretofore rendered, and continued the averment "that the defendant had wrongfully refused to extend, continue, or furnish its service without full compliance on plaintiff's part by payment of the accruedbill in question." A reference to the complaint in Arnold's Case shows that plaintiff's effort was to have applied to the accrued bills due by him for current the amount of the "cash deposit of $2.50" required by the contract made with him, as a prospective consumer, before service connection was made by defendant to plaintiff's premises; and which deposit (per contract) was subject to several options of the public service corporation, one of which was that the company may apply the same upon any unpaid bills against the consumer for service or material. As to the accrued bill, the subject dealt with in Arnold v. Ala. Power Co., supra, it was averred that plaintiff "did owe defendant * * * one bill which was due; * * * for service rendered by defendants to plaintiff during April, 1919; that it amounted to only $160"; and it was averred that it was the duty of defendant to apply enough of the $2.50 (service deposit required by contract) as may be required to liquidate the amount of the accrued bill of $1.60. The amount treated in Arnold's Case as due, or as an "accrued or past-due bill," was not an unascertained amount for service done or current furnished during a period for which the meter had not been read by the company and notice directed to or given by the company to the consumer, as provided in the contract. It is true that in Arnold's Case, declaring for a breach of contract in the discontinuance of service to a consumer for nonpayment of an accrued bill, there was adverted to the general duty of a public service corporation as defined in B. R., L. P. Co. v. Littleton, supra. In each of these cases, the duty to pay an accrued bill, or service charge, was treated as a condition precedent to a continuance or installation of service.

In a decision subsequent to B. R., L. P. Co. v. Littleton, supra, it was declared, as to the duty to pay the flat rate for water, that where a bona fide dispute exists between a public service corporation (a water company) and the customer as to the amount of the accrued account for service (caused by reason of connections of other consumers to plaintiff's service pipe), in order to secure the continuance of service "the customer" must pay the amount demanded by the company and sue for its recovery if an unjust amount in law and in fact has been exacted; or that customer may invoke equity jurisdiction to maintain the status quo, pending a judicial determination of the matter in dispute, and in which event must offer in his pleadings to pay such sum as the court may ascertain to be due. Sims v. Alabama Water Co., 205 Ala. 378, 87 So. 688. However, it should be noted that the further observation is contained in the Sims Case, supra:

"* * * This does not militate at all against the proposition, sound also, that where the company discontinues its service in any case of dispute it does so at its peril, and, if in the wrong, is liable to compensatory damages in any event, and, when the circumstances justify it, to punitive damages also, as stated by the Court of Appeals in Birmingham Waterworks Co. v. Keiley, 2 Ala. App. 639, 56 So. 858, and Birmingham Waterworks Co. v. Davis, 16 Ala. App. 333, 77 So. 927, cases cited by appellant. In the case at hand appellant's entire contention, apart from the question of notice, to which we will advert later on, was that appellee had no right to cut off her water supply in order to collect dues from another tenant in the circumstances already stated."

See Birmingham Water Works Co. v. Windham, 190 Ala. 634,67 So. 424.

Are the averments of the instant counts such as to show that the defendant wrongfully discontinued the current; that is to say, if plaintiff's duty was to pay for the service concurrent with its periodic use as indicated, and that the extension of service was dependent thereon and not independent thereof? In answer of this inquiry raised by the demurrer, and thoroughly argued by counsel, it will be noted that it is alleged in the complaint, or appropriate count thereof, that by the "wrongful act of the said defendant in depriving him (plaintiff) of said current as aforesaid," and "that the defendant breached said duty as aforesaid and as a proximate consequence of the said wrongful act of defendant in cutting off the current as aforesaid," etc.; which latter reference was to the averment that as "a public service corporation engaged in furnishing for compensation electricity for lighting, etc., and this defendant had agreed with plaintiff to furnish electricity to plaintiff at his home * * * and to charge therefor at the rate fixed."

On the subject before us it has been stated generally that if there is no connection in the matter of the promise, and the performance on the one side is quite independent of the other, the promises are in general independent and not conditional. Mullins v. Cabiness, Minor, 21; Weaver, Adm'r, v. Childress, 3 Stew. 361; Jones v. Sommerville, 1 Port. 437, 464, 465; Hays v Hall, 4 Port. 374, 30 Am. Dec. 530; White v. Beard, 5 Port. 94, 30 Am. Dec. 552; Logan v. Hodges, 6 Ala. 699; Fulenwider v. Rowan, 136 Ala. 287, 309, 34 So. 975. Where by the terms of the contract the time to perform the covenant on the one side is to arrive, or may arrive, before the time for the performance of the covenant on the other side, the former is not dependent on the latter. However, the present tendency of the courts generally, and in this jurisdiction, is against the construction of promises as independent covenants, in the absence of language to the contrary, in the contract, and that promises which form the consideration for each other are held to be concurrent or dependent, and a failure of one party to perform will discharge the other (in the absence of special circumstances not here necessary to be discussed), and the one cannot maintain an action against the other without averring and proving performance or a tender of performance on his part. Davis v. Wade, 4 Ala. 208; Taylor v. Rhea, Minor, 414; Drake v. Goree, 22 Ala. 409; B. R., L. P. Co. v. Pratt McCurdy,187 Ala. 516, 65 So. 787; Id., 10 Ala. App. 273, 64 So. 510; Home Guano Co. v. Inter. Agr. Corp., 204 Ala. 274, 85 So. 713; J. C. Lysle Mill. Co. v. North. Ala. Gro. Co., 201 Ala. 222,223, 77 So. 748; Dowling-Martin Gro. Co. v. J. C. Lysle Mill. Co., 203 Ala. 491, 83 So. 486; Terrell v. Nelson,177 Ala. 596, 58 So. 989; Terrell v. Nelson, 199 Ala. 436,74 So. 929, 931; Elliott v. Howison, 146 Ala. 568, 583,40 So. 1018; McAllister-Coman Co. v. Matthews, 167 Ala. 361,52 So. 416, 140 Am. St. Rep. 43; Moss v. King et al., 186 Ala. 475,481, 65 So. 180; Saunders v. McDonough et al., 191 Ala. 119,134, 67 So. 591; Wise v. Sparks, 198 Ala. 96, 73 So. 394; Ollinger Bruce Dry Dock Co. v. James Gibbony Co.,202 Ala. 516, 81 So. 18; McGehee v. Hill, 4 Port. 170, 176, 29 Am. Dec. 277; Davis v. Adams, 18 Ala. 264.

The counts allege that there was an "agreement" on the part of defendant to furnish electricity to plaintiff's premises specifically indicated, the averment being "defendant had agreed with plaintiff to furnish electricity to plaintiff at his home." When this is taken in connection with the other averments of the complaint, as it must be (Ala. Power Co. v. Stogner [Ala. Sup.] 95 So. 151,¹ the effect is that the agreement "was made with the plaintiff or in behalf of the plaintiff." The counts were not subject to the ground of demurrer assigned that they fail to allege that the "defendant was under contract, either express or implied, to furnish electricity to plaintiff," etc., and the first and second grounds of demurrer are not well taken.

Considering the counts as not declaring for the breach of contract, but as we believe them to be in case for the tort or breach of the duty owed to plaintiff by a public service corporation to serve the public in the municipality wherein it did such commercial business and plaintiff was a resident and his home was situated in such municipality, are the grounds of demurrer (3 to 6, inclusive), directed thereto, well assigned? The questions thus presented have been considered in B. R., L. P. Co. v. Littleton, supra, a refusal or failure of service of electricity; B. R., L. P. Co. v. Pratt McCurdy, 187 Ala. 511,65 So. 533, L.R.A. 1915A, 1208, a discontinuance of gas service; Sims v. Ala. Power Co., 205 Ala. 378, 87 So. 688, a discontinuance of service of water; Arnold v. Ala. Power Co., 206 Ala. 506, 90 So. 909, 910, a discontinuance of service of electricity.

If plaintiff "owed" for electric current for which payment was due and failed to make payment, or to tender the amount due, and for such failure the service was discontinued, the defendant did not wrongfully discontinue the service. It is true it is averred, as we have indicated, in the second count, that in violation of defendant's duty to plaintiff, defendant willfully or wantonly or recklessly disconnected the wire which carried the said current into the home of plaintiff, etc.; and in count 1 is contained the averment that said wrongful act of the said defendant in "depriving him (plaintiff) of said current as aforesaid," etc. Such averments are not the equivalent of the averment of a wrongful act or facts showing the wrongful act in discontinuing the service to plaintiff's residence and home that deprived him of electric current to which he was entitled.

The counts are couched in such terms as to sufficiently allege that there was a debt due and in default, to the extent of the amount admitted by plaintiff, though it is further averred that a different sum was claimed and demanded by the defendant as due and payable before and at the time of the discontinuance of the service. Plaintiff's duty to pay, or offer to pay, the amount admitted to be due, was a condition precedent to the continuance of the service, and such being the averred fact, and the failure on plaintiff's part, gave the right of discontinuance of the service, not as a conditional limitation on the term in the nature of a condition subsequent. The cases of B. R., L. P. Co. v. Pratt McCurdy, supra, and Davis v. Wade, 4 Ala. 208, bear strong analogy to the instant question. The last-stated grounds of demurrer were well assigned and should have been sustained by the trial court. Thus reversible error intervened on the trial.

We do not question the soundness of the general rule in the note to Mansfield v. Humphreys, 19 Ann. Cas. page 848, referred to and approved in the case of Sims v. Ala. Water Co., 205 Ala. 378,87 So. 688, to the effect that when the company shuts off the water supply because of a failure of the customer to pay the claim for rent, where the consumer's liability, or the accuracy of the amount claimed, is a matter of just dispute between the parties, it does so at its peril. This rule, however, like most others, has exceptions or qualifications, and does not afford a basis for damages, when the customer conceded a certain amount to be due and failed to offer or tender same before the supply was cut off. If he owed nothing or if the charge was excessive and he did not know just what was due, he can complain of the cutting off of the supply before a reasonable opportunity is offered to adjust the difference; but if he knows what was due, he must have offered to pay or tender same as a condition precedent to recover damages for having the same cut off. The complainant in the case at bar admits or concedes a certain amount due the defendant, which said sum should have been offered when the bill was demanded.

There were exceptions taken to instructions in the oral charge as to punitive damages. An examination of the entire charge relating to punitive damages discloses no error for reason first urged by appellant, though it was stated that the "plaintiff would have a right to recover" of the defendant under the second count of the complaint "what is called at law, punitive or vindictive or exemplary damages." That is to say, that when the whole charge on the instant point is considered, and as referred to the second count, the jury was merely instructed that the count was sufficient in averment, and under the evidence supporting it, to authorize, under the discretionary power of the jury, the imposition of punitive damages. The rules of this court relating to instructions as to punitive damages when no malice is shown need not be repeated. Coleman v. Pepper, 159 Ala. 310, 313, 49 So. 310; Cox v. B. R., L. P. Co., 163 Ala. 170, 172, 50 So. 975; Comer v. Advertiser Co., 201 Ala. 159, 77 So. 685; Parisian Co. v. Williams, 203 Ala. 378, 83 So. 122; First Nat. Bank v. Stewart, 204 Ala. 199, 85 So. 529, 13 A.L.R. 302. On another trial the court will instruct the jury in accord with the announcement of punitive or vindictive damages contained in Wilkinson v. Searcy, 76 Ala. 176, 180, 181; Howton v. Mathias,197 Ala. 457, 463, 73 So. 92; Jones v. Woodward Iron Co.,203 Ala. 66, 82 So. 26; Cook v. South. Ry. Co., 153 Ala. 118,45 So. 156; S. A.L.R. Co. v. Standifer, 190 Ala. 260,67 So. 391.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

All the Justices concur.

¹ 208 Ala. 666.