Bromer v. Florida Power & Light Co.

• Decision Date: 03 June 1949
• Citation: 45 So.2d 658,13 A.L.R.2d 1227
• Parties: BROMER et al. v. FLORIDA POWER & LIGHT CO.
• Court: Florida Supreme Court

Page 658

45 So.2d 658

13 A.L.R.2d 1227

BROMER et al. v. FLORIDA POWER & LIGHT CO.

Supreme Court of Florida, en Banc.

June 3, 1949.

On Rehearing Feb. 24, 1950.

Further Petition for Rehearing Dismissed March 25, 1950.

Cleveland, Sibley & Davis and Broad & Cassell, Miami Beach, for appellants.

Loftin, Anderson, Scott, McCarthy & Preston, Miami, for appellee.

PER CURIAM.

Affirmed.

TERRELL, THOMAS, SEBRING, and HOBSON, JJ., concur.

ADAMS, C. J., and CHAPMAN and BARNS, JJ., dissent.

CHAPMAN, Justice (dissenting).

It is my view that the amended declaration states a cause of action. A public utility is liable for damages resulting from its failure to perform its contract. See Mugge v. Tampa Water Works Co., 52 Fla. 371, 42 So. 81, 6 L.R.A.,N.S., 1171, 120 Am.St.Rep. 207; Woodbury v. Tampa Water Works Co., 57 Fla. 243, 49 So. 556, 21 L.R.A.,N.S., 1034; 43 Am.Jur., 586-591, pars. 22 to 30. A contract to supply electrical current or power is not only binding, but my and must be performed according to its terms and the proper construction thereof, unless there is a sufficient excuse for non-performance, and where one party fails to perform without adequate excuse, he is liable for damages. Contracts for electric supply may be implied. 29 C.J.S., Electricity, § 26, 541-542, and footnote citations; Volume 20 Corpus Juris 332-340; 29 C.J.S., Electricity, §§ 25-28.

The several elements of damages claimed are not ruled upon but may be ruled upon by the trial court. I would reverse the judgment and require the defendant below to plead.

ADAMS, C. J., and BARNS, J., concur.

On Rehearing

HOBSON, Justice.

This is an appeal from a final judgment rendered upon a demurrer to an amended declaration by the Circuit Court of the Eleventh Judicial Circuit, which amended declaration was filed by the appellants Charles Bromer, Ben Levin and Shirley Levin, a co-partnership formerly trading and doing business as Chief Frozen Products, against the appellee Florida Power & Light Company. The lower court concluded that the appellants' amended declaration for breach of contract failed to state a cause of action, sustained the appellee's demurrer thereto, and rendered final judgment thereon. The appellants did not allege an express contract to furnish any particular amount of electrical current continuously. Apparently they contend that an implied contract imposing that duty should be held to exist between the parties because the appellee ascertained by inspection and tests the exact amount of electrical energy needed by the customer at the premises in order to operate appellants' cooling plant, or cold-storage plant, and after such ascertainment the appellee connected the current and began supplying it.

The first question in this case is not whether a contract for electric supply may be implied for, unquestionaly, it may, but it is, on the other hand, a question of the scope and effect which should be given to such alleged implied contract. By this we mean whether the allegations of the amended declaration necessarily or in any event given rise to an implied contract to furnish 220 volts of electrical current continuously and in any and all events. This interrogatory begets the further query whether the appellants should be required to allege and show negligence on the part of the appellee, or whether the appellee should have the burden of pleading and establishing that it was not negligent but failed to furnish a continuous 220 voltage current by reason of some unanticipated event or an act of God.

A consideration of the former question necessarily involves a study of the obligations, duties and responsibilities of the appellee to each and to all of its other customers, for it might not be reasonable or practicable for it to discharge its alleged continuing duty to supply not less then 220 volts to the appellants without being guilty of discrimination. However, it would seem that the appellee should be held duty bound to furnish the amount of electricity which it has known from the beginning of negotiations would be needed by the appellants 'if, by reasonable and practicable diligence and care under all the existing circumstances and conditions, it can do so without discrimination against other customers. Public service corporations cannot give to particular customers special favors to the detriment of others. They must treat all customers alike.' Humphreys v. Central Kentucky Natural Gas Co., 190 Ky. 733, 229 S.W. 117, 120, 21 A.L.R. 664. In other words, if any implication is to be drawn from the relationship of the parties as alleged in the amended declaration it is an implied obligation to exercise reasonable care rather than one to furnish 220 volts of current continuously and in any and all events. Guardian Trust & Deposit Co. v. Fisher, 1906, 200 U.S. 57, 26 S.Ct. 186, 50 L.Ed. 367; Watson v. Inhabitants of Needham, 1894, 161 Mass. 404, 37 N.E. 204, 24 L.R.A. 287; City of Huntingburg v. Morgen, 1928, 90 Ind.App. 573, 162 N.E. 255, 163 N.E. 599.

It is our view that a greater burden should be placed upon a plaintiff who relies upon an implied contract than one who uses reasonable care and foresight in protecting himself by means of an express contract. To hold otherwise would be to encourage loose dealings and place a premium upon carelessness. This Court should determine and give to the alleged implied contract 'the effect which the parties, as fair and reasonable men, presumably would have agreed upon if, having in mind the possibility of the situation which has arisen, they had contracted expressly in reference thereto.' 12 Am.Jur. 766.

Can it be said under the circumstances alleged in the amended declaration and upon a consideration of the duties and responsibilities which the appellee owes to its other customers that we should presume it would have entered into an express contract (if, indeed, it lawfully could have done so--a point which we do not decide, but see Woodbury v. Tampa Waterworks Co., 1909, 57 Fla. 243-249, 49 So. 556, 21 L.R.A.,N.S., 1034; Demeter Land Co. v. Florida Public Service Co., 1930, 99 Fla. 954, 128 So. 402; Chicago & Alton Railroad Co. v. Kirby, 1911, 225 U.S. 155, 32 S.Ct. 648, 56 L.Ed. 1033, Ann.Cas.1914A, 501; Railway Exchange Building, Incorporated, v. Light & Development Company, 1937, 341 Mo. 334, 107 S.W.2d 59, 21 P.U.R.,N.S., 104) which would have required it to furnish to the appellants an electrical current of 220 volts continuously and in any and all events? We think not.

We cannot agree that the implication contended for by the appellants should be considered as one of the terms of the contract 'because * * * [it is] necessarily involved in the contractual relationship so that the parties must have intended * * * [it] and * * * only failed to express * * * [it] because * * * [it is] too obvious to need expression.' 12 Am.Jur. 766.

No public utility corporation should be required to become an insurer by virtue of anything less than an express contract on its part to assume such responsibility and obligation. Certainly this is true unless such...