Alabama Power Co. v. Dunlap, 6 Div. 814.

• Decision Date: 27 February 1941
• Docket Number: 6 Div. 814.
• Citation: 240 Ala. 568,200 So. 617
• Parties: ALABAMA POWER CO. v. DUNLAP.
• Court: Alabama Supreme Court

200 So. 617

240 Ala. 568

ALABAMA POWER CO. v. DUNLAP.

6 Div. 814.

Supreme Court of Alabama

February 27, 1941

Appeal from Circuit Court, Walker County; R. L. Balnton, Judge.

Action by Fletcher Dunlap against Alabama Power Company to recover damages for wrongful discontinuance of electric current. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326.

Reversed and remanded.

In action against power company for wrongful discontinuance of electric service to plaintiff's residence, where evidence was sufficient to take case to jury on simple negligence count of complaint, defendant's requested charge that jury could not award plaintiff more than nominal damages was properly refused.

C. T Ingersoll, witness for defendant, testified that he went to the plaintiff's premises and found the wire running into the attic and attached to defendant's service wire. On cross-examination he was asked the question set out in the opinion.

Charge 15, refused to defendant, is as follows: "I Charge you that if you are reasonably satisfied from the evidence in this case that plaintiff by a reasonable effort could have had service restored to his premises after service had been suspended, then plaintiff cannot recover any damages in excess of those which would compensate him for the inconvenience and expense of making such reasonable effort to have service restored."

Arthur Fite, of Jasper, and Martin, Turner & McWhorter and James Baldone, all of Birmingham, for appellant.

Pennington & Tweedy, of Jasper, for appellee.

THOMAS Justice.

The suit was for damages in two counts for the alleged wrongful discontinuance of electric service to plaintiff's residence. The pleading was in short by consent, and the case was submitted to the jury on the simple negligence and wanton counts.

The evidence was in effect that appellant was a public utility furnishing electric service in Jasper, Alabama, where its service was discontinued as to appellee-customer. Said customer lived with his wife, children and three boarders electric service had been furnished appellee's residence during the period from October, 1937, to March 17, 1939, when the same was discontinued. The house in question contained five rooms, a porch which was lighted, the only other electric appliance in use being an electric iron; that appellee owned a radio, which was operated by electricity, but plaintiff's wife testified that such radio was not in use at the time electric service was discontinued, but that they had a battery radio which was being used at such time. The said electric service was discontinued by appellant on March 17, 1939, under circumstances later to be indicated, and appellee was without such service until July, 1939.

After the discontinuance of electric service, appellant required appellee to make such changes in electric wiring in said residence before service would be restored as were approved by the Public Service Commission. The customer was duly notified of such required changes, but did not make them until July, 1939, when the electric service was promptly restored.

The evidence further shows that during the period from May, 1938, to February, 1939, there was consumed on said premises, registered by an electric meter, certain kilowatt-hours of electricity, the amount ranging from forty to eighteen kilowatt-hours per month; that for the month of February, 1939, the electric meter registered fourteen kilowatt-hours; for the month of March, 1939, the meter registered only ten kilowatt-hours.

Appellant's meter-reader testified that on March 13, 1939, he went upon the premises of Mr. Dunlap for the purpose of taking the electric meter reading and noticed that such instrument was not registering electricity consumption, even though a radio was playing at the time in appellee's house; that the fact of such playing of radio taken with the low consumption of electricity for the last two months, led him to report such facts to appellant's office in said city.

Mr. Preston, testifying for appellant, said he was its "service man" and, when he received the report made by Mr. Belue (the meter reader), he accompanied Mr. Copeland, another one of the service men, on March 16, 1939, to appellee's house, examined the electric meter and found that it was not registering the consumption of electricity; that upon further investigation of the premises, it was disclosed that approximately twelve feet above the meter a wire had been attached to appellant's service wire, which transmitted electricity to the residence, such attached wire running from the service wire, passing through a hole in the wall of the house to the attic thereof, and that the electric current was being transmitted into the house without passing through the meter. He further testified he directed Mr. Copeland to advise appellant's district manager or office engineer of such condition; that immediately thereafter the office engineer, Mr. Ingersoll, proceeded with said three employees to appellee's residence and noticed the condition existing as to the circuit transmission to the residence around, instead of through, the electric meter. Employees Copeland and Ingersoll stated, as witnesses for appellant, that they noted the conditions indicated by witness Preston. Mr. Preston testified that the following day he reported the condition found to District Manager Jackson, who directed him to discontinue electric service, and pursuant to such instruction, on March 17, 1939, electric service was discontinued to that residence.

The General Rules for Electric, Gas, Water, Telephone and Telegraph Utilities, as to suspension of service to a customer, were introduced in evidence. Subdivision (c) of Rule 11 of said rules is to the effect that any utility may suspend service to a customer without notice and without terminating the agreement for service in the event the instruments, contrivances and/or appliances used in conducting, supplying, measuring or registering gas, steam, water, and/or electricity serving customer's premises are altered and/or changed in any way except by natural causes so as to cause such instruments, contrivances and/or appliances to destroy, alter or prevent the registration of the service received. The last part of said rule is as follows: "The utility shall not be required to restore service after suspension in accordance with this rule until the customer has complied with all reasonable rules of the utility designed to prevent a recurrence and the utility has been reimbursed for the full amount of service rendered."

Witness Preston testified that pursuant to Mr. Jackson's instructions, after he had disconnected the service, and on the same day, he mailed appellee a letter, signed by Mr. Jackson, as district manager of the Alabama Power Company, containing, among other things, the following:

"Our attention has been called to certain irregularities resulting in improper meter registration of current used, as a result of which we have cut off electric service to the premises which you occupy located at: 18th Street & 7th Avenue, Jasper, Alabama.

"Before service is reestablished, it will be necessary to make certain changes in wiring

...