Alabama Power Co. v. Hussey

• Court: Supreme Court of Alabama
• Writing for the Court: BLOODWORTH; HEFLIN; HARWOOD; COLEMAN; HARWOOD; COLEMAN
• Citation: 285 So.2d 92,291 Ala. 586
• Decision Date: 08 November 1973
• Parties: ALABAMA POWER COMPANY, a corporation v. S. M. HUSSEY. SC 339.

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285 So.2d 92 291 Ala. 586 ALABAMA POWER COMPANY, a corporation
v.
S. M. HUSSEY. SC 339. Supreme Court of Alabama. Nov. 8, 1973.

[291 Ala. 587]

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Balch, Bingham, Baker, Hawthorne, Williams & Ward and James O. Spencer, Jr., Birmingham, Smith & Smith, Phenix City, for appellant.

C. Neal Pope, Phenix City, for appellee.

BLOODWORTH, Justice.

Defendant, Alabama Power Company, appeals from a judgment on a jury verdict for $30,000 in an action for wrongfully disconnecting and discontinuing electric current to the residence of plaintiff, Hussey, appellee herein.

Plaintiff Hussey filed his complaint in two counts, count one alleging defendant wrongfully discontinued electric service to the plaintiff's residence, and the second count averring defendant wilfully or wantonly discontinued the electric service. Defendant's demurrer was overruled. Defendant thereupon filed eight pleas. Plea Six is a plea of confession and avoidance based upon an alleged refusal by plaintiff to make a deposit in accordance with Rule 7 of the General Rules applying to public electric, gas and water utilities in the State of Alabama promulgated by the Alabama Public Service Commission, which permits the Power Company to require a deposit from customers to guarantee payment of current bills, when in its judgment such deposit is necessary. Plaintiff did not demur to defendant's pleas, but rather joined issue on them. Trial was had and a jury returned a verdict in favor of the plaintiff for $30,000. Defendant's motion for a new trial was denied. Defendant appeals.

Briefly, the facts of this case are as follows. Plaintiff had been a customer of the Alabama Power Company for a period of 13 years, during which time his monthly electric bill had never exceeded $50.00. He has always paid these bills timely.

In September, 1971, he received a monthly bill from the Alabama Power Company for $172.46. Plaintiff immediately called the local office of the Alabama Power Company and told them that the bill was unusually high and requested that the meter be rechecked. A series of telephone calls and trips out to the plaintiff's residence by the defendant's employees apparently followed, and the Power Company assured the plaintiff that the bill was correct. Plaintiff then hired his own electrician, Mr. Tice, whom the Power Company had assured him was competent for the job, to recheck the meter. Mr. Tice [291 Ala. 589]

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checked the meter, found and replaced a burned out part.

In October, 1971, plaintiff received a monthly bill from the Power Company in the amount of $81.73. Both bills were paid on October 22.

About November 24, plaintiff received a letter from the Alabama Power Company stating that, as a result of an investigation of plaintiff's account, the company had determined that plaintiff's meter had been tampered with and that plaintiff had been underbilled. The letter then stated that a revised billing for the past 13 months indicated that plaintiff owed an additional $490.95. The next day, plaintiff received another letter from the Power Company which demanded a deposit of $120.00 and stated that if such deposit were not made within 10 days, electric service to the plaintiff would be disconnected. The deposit was not paid and the electric power to plaintiff's residence was cut off for a period of nine days. This suit followed. Nothing further has occurred with reference to the $490.95 bill. We presume its collection was abandoned.

Three issues are argued on this appeal. First, defendant contends that it proved all the allegations of Plea Six, and that therefore the trial court committed reversible error in denying defendant's request for the general affirmative charge. Second, defendant contends that the trial judge committed reversible error in denying defendant's motion for new trial on the grounds that a juror, who allegedly had made 'complaints' to the Power Company in the past, failed to so state when questioned on voir dire. Third, defendant contends that the verdict of the jury was so excessive as to necessarily result from prejudice, passion, partiality or some other controlling sentiment, and that the trial judge committed reversible error in failing to set it aside on defendant's motion for a new trial.

Defendant's Plea Six is as follows:

'6. That the defendant under the provisions of Rule 7 of the General Rules applying to Public Electric, Gas and Water Utilities in the State of Alabama promulgated by the Alabama Public Service Commission Docket No. 15957 that said defendant did require the plaintiff to put up a cash deposit intended to guarantee payment of current bills for public utility services after determination had been made by the defendant, a public utility, that in its judgment such deposit was necessary. The defendant then at its discretion did render to the plaintiff, its customer, a bill for the required deposit and the plaintiff was granted five days in which to make the required deposit. At the expiration of said five-day period, service to the plaintiff was discontinued by the defendant after plaintiff refused to put up said required deposit, all under the provisions of Rule 7 as described above.'

It is well established that undisputed proof of an immaterial plea entitles the defendant to a judgment as a matter of law. The truth of the plea, however, must be proved 'without dispute' (Gay v. Cummings, 23 Ala.App. 8, 122 So. 313, cert. den., 219 Ala. 324, 122 So. 313 (1929)), by 'uncontradicted proof of the facts averred' (Doss v. Wadsworth Red Ash Coal Co., 185 Ala. 597, 602, 64 So. 341 (1914)), and 'without conflict' in the evidence (Central of Georgia Ry. Co. v. Gross, 192 Ala. 354, 360, 68 So. 291 (1914)).

In Drake v. Nunn, 210 Ala. 136, 97 So. 211 (1923), this court reversed a judgment where an affirmative charge for defendant had been given because, while the bulk of the plea was without dispute, one fact averred in the plea was in sharp conflict. In doing this, the court made it clear that such pleas will be strictly construed:

'This rule, though highly technical, and sometimes promotive of injustice, has been firmly established by our decisions. Cent. of Ga. Ry. Co. v. Gross, [291 Ala. 590]

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192 Ala. 354, 68 So. 291; White v. Yawkey, 108 Ala. 270, 19 So. 360, 32 L.R.A. 199, 54 Am.St.Rep. 159. But a party who invokes this technical rule must himself submit to its rigorous logic; and Every allegation of the plea must be proven without dispute, in order to justify an affirmative instruction.' (Emphasis added)

Upon examining the record in the case at bar, it is clear that at least one averment of Plea Six, i.e., that the deposit was 'intended to guarantee payment of current bills,' was in sharp conflict. While the defendant Power Company did introduce testimony that such was the purpose of requiring the deposit of plaintiff, this court takes note that there was testimony to the effect that plaintiff's bill was not in arrears at the time it was determined a deposit was necessary; that plaintiff had kept his power bill current for 13 years; that the deposit demanded was more than twice the highest bill the plaintiff had ever received, exclusive of the two disputed bills; that defendant had contended that plaintiff's meter had been tampered with; and, that agents of defendant had maintained a surveillance of plaintiff's house at night. These facts, as well as the circumstances of the two disputed bills, suggest the Power Company's motive for requiring the deposit may have been other than as averred.

Despite the fact that the trial judge sustained as irrelevant an objection to the only explicit question relating to the discontinuance of service occasioned by unauthorized motive, we think there was at least some evidence which disputed defendant's evidence (under Plea Six) as to its purpose in demanding the deposit. As we have said before, a mere scintilla of evidence will avoid an affirmative charge and require the question to go to the jury. Lawson v. General Telephone Company of Alabama, 289 Ala. 283, 267 So.2d 132 (1972).

It is thus that we conclude that the trial court was correct in denying defendant's motion for a new trial based upon the denial of defendant's motion for in affirmative charge.

Next, we consider defendant's contention that the trial judge committed reversible error in denying defendant's motion for a new trial on the grounds that one of the jurors failed to answer truthfully a question on voir dire. The question arose in the following context, viz:

'THE COURT: Now, then, whether you are customers now or even if you have been customers in the past, during such time have you ever had occasion to make a complaint--I wouldn't want to know what it was--either with reference to service or a bill or whatever, make some sort of complaint of some kind? I just want to know whether you have had occasion to make a complaint. All right.

'Do any of you know of any reason why you could not be fair and impartial if selected to serve as a juror in this case?

'I will expand the question before that one. I asked you if you had ever had occasion to question something. Has any member of your immediate family ever had such an occasion, your own family or perhaps your parents or someone? * * *'

Evidence was presented to the trial judge on motion for a new trial that the juror Mrs. Melinda Wilkes, who served on the trial jury, had failed to respond to this question. Furthermore, it was shown that juror Wilkes had made several phone calls to defendant Power Company during the summer and fall of 1972 with inquiries regarding the amount of her bill, the repair of an air conditioner and arranging to pay her bill in installments. Defendant contends that such calls amount to 'complaints,' and that juror Wilkes' failure to reveal this on voir dire denied defendant a

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fair and impartial jury in the trial of this cause.

[291 Ala. 591] In our recent case of Freeman v....