Birmingham Water Works Co. v. Wilson , 2 Ala. App. 581 ( 1911 )

PELHAM, J.

Although, a number of assignments of error are made, all of those insisted upon, except as to the question of excessive damages raised on the motion for a new trial, go to the right of the appellee (the plaintiff below) to. recover of the appellant (the defendant beloAv) exemplary, punitive, or vindictive damages.' The question' is presented, by appellant in different forms: First, by exceptions reserved to certain parts of the oral charge of the court submitting to the jury the right‘to aAvard appellee exemplary or punitive'damages; second, by exceptions reserved to the refusal of the trial court to- give charges requested in writing by the appellant to .the effect that appellee avús not entitled to recover, such- damages; and, third, by exceptions reserved to the court’s refusal to give the general a.ffir'mative charge as to that count of the complaint seeking to recover punitive, exemplary, or vindictive damages.

The plaintiff (below) Avas a customer of the defendant (beloAv) water company, in the sense that the water company, as a public service corporation, was furnishing the plaintiff water for domestic purposes. In February, 1909, the plaintiff’s supply of water at his home in Ensléy was turned off by the agents or employes of the defendant company, notwithstanding he had previously paid for water service for the first quarter of that year, or the months of January, February, and March of the year 1909. These facts are not seriously disputed, and show a wrong inflicted upon the plaintiff through the defendant’s negligence. Was the defendant’s negligence of such a degree as to entitle plaintiff to have the question of awarding punitive, exemplary, or vindictive damages submitted to the jury;

. The plaintiff testified, that about the second or third day after the water supply was turned off he called up the defendant company’s office over the telephone, gave the number of his meter, and inquired if they had ordered the water cut off, and was informed they had. Upon inquiring the reason, plaintiff was informed he would have to pay the. Avater rent to get it turned-on. To this plaintiff replied he had paid the rent, and OAved nothing on that account. The Avater Avas not turned on, und about three or four days later plaintiff again called the company’s office, over the telephone, and talked with the manager, a Mr. Foster, telling him of the inconvenience of having to carry water from some distance to his home.- The manager, Foster, called to some of the office force, and had the books examined, and stated the books of the company shoAved the plaintiff’s Avater rent for the quarter in question had not been paid. The plaintiff informed the manager in this conversation over the telephone that his water rent was paid, and he was not responsible for the books failing to show it, and the •defendant’s employe or officer closed the conversation •by “hanging up” the telephone. The water was not turned on plaintiff’s premises, and no further complaint was made until four or five days after this second conversation, Avhen plaintiff again called the defendant’s •office over the telephone, and talked Avitk some one in the office, Avho, he thinks, was the same person, Mr. Foster, the manager. In this conversation plaintiff informed the party in the company’s office, in ansAver to an inquiry of how he kneAV he had paid the disputed water rent, of having a receipt, and where it could be seen — in his laAvyer’s office. “Immediately after that the Avater was turned on.” The plaintiff also stated: “Every time I called, I heard them looking up the books. I think on each conversation they told me the books failed to show that the water rent had been paid. I did not tell them I had a receipt until the last conversation.” In another part of the evidence plaintiff states he had informed the party to whom he talked over the telephone of having a .receipt before the last conversation.

The other testimony in the case sheds no light upon the proposition of plaintiff’s right to have the question of recovering exemplary, punitive, or vindictive damages submitted to the jury. There can be no question but that the defendant was guilty of negligence in cutting off plaintiff’s Avater supply when it had been paid for; yet, if there was no. evidence to warrant the submission of the question of punitive damages to the jury, if there Avas no evidence to justify awarding such damages, it was error to submit that question to the jury.— Peters v. Southern Ry. Co., 135 Ala. 533, 33 South. 332; Birmingham, Ry. L. & P. Co. v. Franscomb, 124 Ala. 621, 27 South. 508, and cases cited. The appellant insists that the trial court erred in allowing the jury to consider giving punitive damages under the evidence adduced upon the trial in this case.

It has long been settled by a line of well-considered decisions in this state that, Avhere the injury is inflicted by Avanton or intentional conduct, punitive damages may be recovered.—Lienkauf v. Morris, 66 Ala. 406; Wilkinson v. Searcy, 76 Ala. 176; L. & N. R. R. Co. v. Whitman, 79 Ala. 328; Ala. Gt. Sou. R. R. Co. v. Sellers, 93 Ala. 9, 9 South. 375, 30 Am. St. Rep. 17; Ala. Gt. Sou. R. R. Co., v. Frazier, 93 Ala. 45, 9 South. 303, 30 Am. St. Rep. 28; Highland Ave. & Belt R. R. Co. v. Robinson, 125 Ala. 483, 28 South. 28; and the many cases cited in the above decisions. The rule authorizing the recovery of punitive damages is thus stated by Stone, C. J.; in Wilkinson v. Searcy, 76 Ala. 176: “ * * * To authorize punitive, exemplary, or vindictive damages (different names for tlie same thing), there must be ‘gross negligence within the strictest signification of the phrase, which must be construed to mean- such entire want of care as to raise a presumption that the person in fault is conscious of the probable consequences of his carelessness, and is indifferent, or worse, to the danger of injury to the persons or property of others;’ or that the act compiained of ‘was done wilfully [in its strong sense], or was the result of that reckless indifference to the rights of others, which is equivalent to an intentional violation of them;’ or ‘where the injury has been wanton, or malicious, or gross;’ or ‘where fraud, malice, or oppression appears.’ i:' * * ” We think this the correct rule. There must be some evidence of intentional, willful (“in its strong sense”), or wanton conduct, a conscious willingness to inflict injury upon appellee by the water company’s employes, or some of them to authorize submitting to the jury the question of punitive damages. The question vel non is one for the court. A careful examination of the evidence does not disclose anything authorizing a recovery of punitive damages.

Evidently the course of the trouble arose from the. negligent omission of the appellant to have its books properly kept, or its negligence in not having its water rent collections reported, but neither in this nor in the subsequent conduct of the appellant’s employes in dealing with the transaction do we find anything that can be characterized as intentional, willful, or wanton acts of commission or omission, or such as are equivalent to reckless indifference of known harmful consequences, or a conscious willingness to inflict injury. The case presented shows negligence, but no wanton or- wilful wrong, and the general affirmative charge should have been given the defendant below as to punitive damages.

It' is not necessary to consider the question as to whether or not the damages assessed' by the- jury are excessive, as the case must be reversed and remanded for a new trial for the errors committed by the trial court; as above set out, in submitting to the jury the right to award punitive damages.

Reversed and remanded.