Scranton Gas & Water Co. v. Sturgess , 47 Pa. Super. 203 ( 1911 )

Opinion by

Head, J.,

The plaintiff sued to recover $86.69, the priee at' rates about which there is no dispute of 425,960 gallons of water alleged to have been delivered to defendant on his premises between April 6, 1909, and June 21, following. Of course the right of the plaintiff to recover that sum depended upon its ability to prove to the satisfaction of the jury that it had actually delivered the quantity of water mentioned. If the defendant was able to.prove enough to break down, in the minds of the jury, the conclusion that so much water had been delivered, then the sum primarily sued for could not be recovered and the plaintiff’s first line of attack had failed.

But there was nothing in the form or nature of the action or in the pleadings to prevent the plaintiff recovering a less sum for such quantity of water as it could show it had actually delivered. Again, however, the burden was upon it to establish by the weight of all the evidence the quantity of water delivered so that a verdict in its favor could rest upon a substantial foundation.

On the trial, the plaintiff, to convince the jury that it had delivered the quantity of water claimed, relied chiefly on the testimony of the meter it had installed on the defendant’s premises. To strengthen this testimony, the plaintiff, as part of its case in chief, produced evidence tending to prove that the meter was of standard design; that it was well constructed mechanically; that after this dispute had arisen it had been subjected to accepted tests to determine its accuracy and had been found to be in proper working order. Still further it offered evidence to show to the jury the extent and character of the premises of the defendant, the number of buildings thereon, and the manner in which they were equipped to use water, the size of the lawn and garden, the capacity of the sprinkler, used to water them and other like facts, all'intended to strengthen the conclusion that the meter had truly registered, and thus to establish the plaintiff’s claim.

The defendant produced no expert witness to directly assail the propositions that the meter was of approved design and well constructed mechanically. Was he thereby estopped from challenging the correctness of the conclusion that he had actually received from the plaintiff the quantity of water sued for? We know of no recognized principle of evidence that would warrant a court in so holding. The history of mechanical invention would have to be rewritten before we could eliminate from it the painful gaps during which even the keen eye of the creator of the idea could not discern the hidden reason why the practical results of the concrete machine failed to measure up to those foreshadowed by the abstract conception. ,

The defense to the claim was along these lines. The defendant was but a private consumer; the charge against him was for an average daily consumption of above 5,200 gallons of water. True, the plaintiff had undertaken to show that the premises served were extensive and so arranged that a large use of water was to be expected. But the defendant replied by evidence that during a large part of the period' charged for the defendant and his family were absent and the mansion house on the premises closed; that the part of the barn building which had been prepared so that it could be occupied by some of those in the defendant’s service had not been in fact occupied, so that nothing could be predicated of the fact that it was provided with facilities to use water; that during a large part of the period charged for the weather was wet and showery, and there was no occasion to use water outside of the cottage occupied only by the caretaker and his wife.

Unless then some species of infallibility was to be attributed to the testimony of the meter, evidence of this character was properly admitted by the learned trial judge because its tendency was to create in the minds of the jury a conviction that no such amount of water .as the plaintiff claimed had been actually delivered. It cannot be successfully argued, as we view it, that such testimony should have been rejected merely because it failed .to point out whether the fault was in the design of the meter; in its construction; in some temporary obstruction to its accurate operation; or in. some mistake in observation or inference of those who read and tested it. No such burden was on the defendant.

The large quantity of water claimed for could not have been received by the defendant without the intervention of some human agency and without leaving some visible manifestation of its presence on the premises. The evidence does not disclose any indication of any leak in the defendant’s system of pipes or other means by which a large quantity of water could have gotten away unobserved. True, the plaintiff was under no obligation to show by proof what became of the water after it was delivered into the private lines of the defendant, but it was obliged to satisfy the jury under all the evidence that it had actually been delivered. If, for instance, the caretaker, who for a considerable period alone had control of all openings on the premises, had been able to testify that not a single faucet had been open and not a drop of water used, the learned trial court could not have rejected the testimony. Such evidence might have seemed incredible to many persons under all the other facts in the case, but with it in the case, the conclusion reached, by the aid of the meter and those who read and tested it, would necessarily have been subjected to the same ordeal as all other testimony even when derived from the highest human sources, namely: it must have been submitted under fair and proper instructions to a jury.

The industry of able counsel, together with considerable independent research by the court, has failed to discover any decision of our courts of last resort in a case precisely similar to the one before us. But in Poole v. Paris Mountain Water Co., 81 S. Car. 438, the supreme court of that state indicated the importance and value of testimony of the character of that now presented by the defendant as against an adverse claim resting on the reading of a water meter. It is true, as argued by the learned counsel for the appellee, that was not an action at law for the recovery of a water rate. There, however, as here, the water company claimed from the consumer a sum for an amount of water which the consumer alleged had never been received. The water company, not bringing suit for its bill, sought to enforce its payment indirectly by shutting off the supply of water. The consumer filed a bill in equity to compel the restoration of the water supply. The court below refused to grant the relief prayed for, following apparently the same theory here adopted by the appellee and the learned court below. The consumer had offered evidence tending to show that his house was small and his family not numerous; that he kept no live stock; and that there was no greater consumption of water than for his own family use. The supreme court, in reversing the circuit court, declared that the exact question before it was not to ascertain whether or not the water company had truly delivered the amount of water it claimed, but whether there existed between the parties a substantial and honest dispute on that subject. It held that evidence of the character indicated was sufficient to show that there was such dispute, and as a consequence the action of the company in shutting off the supply was arbitrary and unwarranted. But if testimony of the land indicated did point to the fact of a substantial dispute between the parties, it must follow that upon a trial of that dispute such evidence must have been fairly submitted to the jury as tending to establish a good defense even against the reading of the water meter.

The appellant complains in the first three assignments of error that the learned trial court, after admitting his evidence to which we have alluded, deprived him of any benefit from it by giving practically binding instructions in favor of the plaintiff. “There is no testimony produced on behalf of the defense that is definite enough for me to submit to you as to the correctness or accuracy of the registration made by the meter of the quantity of water that went through it,” said the learned judge, and this is elaborated and repeated throughout the charge. A reading of the whole of it demonstrates that in the view of the learned court the defendant was bound to assume the burden of proving exactly how much water he did receive, or else be concluded by the reading of the meter no difference how greatly that might be at variance with other facts established by the evidence in the case. The defendant was not an actor in any issue that required him to carry such a burden. He was sued for the price of a definite quantity of water. He denied that he had received it. If by reason of the facts he put in evidence the jury were unable to find that he had received so much, then the plaintiff could not recover the full amount sued for. If it asked for a less sum, the burden was still on it to convince the jury that it had delivered the water to be paid for by the verdict it claimed-. The first, second and third assignments are sustained.

The fourth assignment is dismissed. Most of the evidence referred to in that assignment was actually admitted. The question that was excluded was one inviting the witness to determine for the jury how much more water was used during the later summer than during the period covered by the action. There was no preliminary testimony to show that the witness was qualified to give an opinion on that subject which would be more valuable than the jury themselves could draw from the same facts on which he would be obliged to rest any estimate he would offer.

The fifth assignment would at first blush seem to have more merit, but any error in the rejection of the testimony there complained of was cured later by the subsequent action of the court in admitting the portion of the defendant’s offer covering practically the same subject. The assignment is dismissed.

We think the learned court below was right in holding that the testimony which is the subject of the sixth assignment tended to introduce a collateral issue, and as a consequence that assignment is dismissed.

The seventh and eighth assignments may be considered together. There was evidence as to the nature, character and extent of the use of the water during the remainder of the summer subsequent to June 21. There was also evidence that another meter had been installed on the defendant’s premises by the plaintiff and the offer was to prove the readings of that meter during the subsequent period for the purpose of corroborating the general testimony of the defendant and convincing the jury that some error must have existed either in the former meter or in its reading by the plaintiff’s employee. We are of the opinion, for the reasons already indicated, that such evidence was fairly pertinent to the issue involved and tended to establish the defense set up. It accordingly should haye been received, and the seventh and eighth assignments are sustained.

Without discussing in detail the remaining assignments we deem it sufficient to say that we discover no reversible error in any of them and they are dismissed.

We are not unmindful that the problem of furnishing an adequate supply of good water to our large city communities is one of constantly increasing magnitude and perplexity, nor of the vexatious difficulties that may arise if consumers can successfully interpose trivial and unreasonable defenses to just claims of water rates. These difficulties, however, in kind if not in number, attend upon other lines of business and these considerations do not warrant us, in our judgment, in creating new rules of evidence for a particular class of cases.

Judgment reversed and a venire facias de novo awarded.