Vanderberg v. Kansas City, Missouri, Gas Co.
| Decision Date | 21 November 1906 |
| Citation | 97 S.W. 908,199 Mo. 455 |
| Parties | VANDERBERG, Appellant, v. KANSAS CITY, MISSOURI, GAS COMPANY |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. J. D. Slover, Judge.
Transferred to kansas city court of appeals.
Burnham & Brewster for appellant.
Gage Ladd & Small for respondent.
This court has no jurisdiction. The amount in dispute is insufficient. The amount in dispute is not determined by the prayer of the petition, but by the record. State, etc v. Gilmore, 106 Mo. 436; May v. Jarvis-Conklin Co., 138 Mo. 186; Wilson v. Russler, 162 Mo 565; Anchor Milling Co. v. Walsh, 97 Mo. 287; Wolff v. Matthews, 98 Mo. 246; State ex rel. v. Gill, 107 Mo. 44; Rerchenbach v. United Masonic Assn., 112 Mo. 22; Kirchgraber v. Lloyd, 59 Mo.App. 59. First. Punitive damages could not be recovered. This was expressly so ruled in Miller v. Wilkesbarre Gas Co., 206 Pa. St. 254, a case "on all-fours" in this respect, where the gas company shut off one tenant's gas because he refused to pay a delinquent bill of prior tenant. Second. No actual damages were shown for failure to supply gas to that portion of the house occupied by plaintiff, her husband and family. Gas Co. v. Storage Co., 111 Mich. 401. Third. There was no legal evidence that anyone refused to rent plaintiff's rooms because of the absence of gas. She had rented them from May to February without gas, and her statement that certain persons said they would not rent them without gas after February 18th, was mere hearsay. Fourth. The undisputed testimony of plaintiff herself showed that the gas company put in a special meter in the house so that all tenants who wanted gas could have it, but that only one availed herself of the privilege, and there is no evidence that plaintiff informed the other applicants for rooms of this privilege, or that they knew of it. In fact, she must have led them to believe that they could not have gas, which was not the case. If the plaintiff has any cause of action, therefore, it is only for nominal damages, and the highest amount involved, on plaintiff's own theory, is only $ 161, which is much below the jurisdiction of this court.
On March 18, 1903, plaintiff sued defendant as a public service corporation engaged in manufacturing and vending gas for light and fuel in Kansas City, Missouri, and enjoying a monopoly in such business under a franchise granted it by said city. In a nutshell, her complaint is that at a certain time she was tenant and lessee (from month to month) of No. 1314 West 10th Street -- a rooming house. That said house was fitted with gas plumbing and connected with defendant's mains. That on her application on February 10, 1903, gas was turned on by defendant, and thereafter, on February 16, 1903, without excuse and maliciously, her gas was cut off. That on February 18th she again applied to defendant for gas, offering to make any deposit required by defendant and comply with all its reasonable rules and regulations, and was refused gas.
Plaintiff sets forth the elements of her damages thus: "She has been put to great inconvenience," she says, "and damage in the use of her said house as a dwelling; that she can not rent the rooms in her said house for as much per week as she could if she could supply gas therein; and that she has been greatly injured and damaged; that she will continue to be inconvenienced and damaged by reason of defendant's refusal to supply gas to said house for her use, and that of her roomers therein." She lays her damages at $ 5,000 actual and $ 5,000 punitive damages.
The answer tendered the general issue.
At the close of plaintiff's evidence, the trial court took the case from the jury by sustaining a demurrer, and plaintiff comes here.
At the threshold we are confronted with a question of jurisdiction. By the constitutional amendment of 1884, sec. 3 (see R. S. 1899, p. 93) the General Assembly was given power to "increase or diminish the pecuniary limit of the jurisdiction of the courts of appeals." In 1901 (Laws 1901, p. 107) the General Assembly acted under that power and provided that the courts of appeals should have jurisdiction of appeals and writs of error in all cases where the "amount in dispute," exclusive of costs, should not exceed the sum of $ 4,500. Prior to that time the pecuniary limit had been regulated by the Constitution (see sec. 12, art. 6, Constitution of Missouri), and "the amount in dispute" was placed at $ 2,500, exclusive of costs.
The phrase, "amount in dispute," has been before this court and the courts of appeals more than once for interpretation and its intent and application may be said to have been guardedly arrived at (or approached) by a gradual process of judicial exclusion and inclusion, as the cases presented for decision seemed to require.
For example, if a plaintiff is cast on demurrer to his petition, it would seem that the amount stated in the petition controls the jurisdiction on appeal; but where, as in this case, the whole case of plaintiff is presented below and becomes a part of the record through a bill of exceptions, this court has hesitated to give to a plaintiff the whimsical and unregulated power to control its jurisdiction by a mere stroke of his pen in his petition, and we have reserved to ourselves the right in emergency to control the question of jurisdiction by looking into the whole record far enough to do so -- by seeing to it that jurisdiction is not foisted upon us by a mere paper or colorable amount in dispute, but is regulated by the real amount in dispute on appeal as disclosed by the entire record.
In Anchor Milling Co. v. Walsh, infra, plaintiff's cause of action was based on fraud and mistake and this court, speaking through Barclay, J., said: "We think it was intended that the real, rather than the formal, demand of plaintiff should be considered in determining our jurisdiction, when the record discloses both."
Manifestly the nicest discrimination should be exercised in determining jurisdiction, by looking into the whole record, in actions ex delicto, and the record should control the petition, on the amount in dispute, only in such a pronounced case as might arise where the damage sued for is susceptible of being readily arrived at with reasonable certainty from accounts, documents or unquestionable oral evidence (as satisfactory as either) and where the damages may be ascertained by well-known rules regulating the measure of damages. And this should not be done where a real and not a mere colorable question of punitive damages is lodged in the case, nor where other elements of damages exist that are not readily susceptible of reasonably certain calculation by well-known and easily-applied rules. Take an illustration -- a rather inflamed one, possibly, but which will serve our purpose. Suppose A. sued B. for damages based on B's wrongful act in depriving him of the services of a coach horse or a milch cow for a few days or weeks, and laid his damages at, say, $ 10,000. Suppose the uncontradicted evidence showed the services of the cow or horse were of the value of $ 10. The cause comes to this court by appeal. Must we entertain jurisdiction of that cause merely because of the allegation in plaintiff's petition? We think not. Such construction would mischievously...
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