Alabama Water Service Co. v. Harris, 6 Div. 424.

• Decision Date: 15 May 1930
• Docket Number: 6 Div. 424.
• Parties: ALABAMA WATER SERVICE CO. v. HARRIS.
• Court: Alabama Supreme Court

129 So. 5

221 Ala. 516

ALABAMA WATER SERVICE CO. v. HARRIS.

6 Div. 424.

Supreme Court of Alabama

May 15, 1930

Rehearing Denied June 19, 1930.

As Modified June 27, 1930.

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Action by E. M. Harris against the Alabama Water Service Company. From a judgment for plaintiff, defendant appeals.

Affirmed conditionally.

Huey &amp Welch and W. G. Stone, all of Bessemer, for appellant.

Harsh &amp Harsh, of Birmingham, and Mathews & Mathews, of Bessemer, for appellee.

BOULDIN J.

Action for damages against a public water company for wrongful cutting off the water supply of a customer, and for refusal to furnish water.

Count one is for "wrongfully" cutting off plaintiff's water supply; count two for "negligently" cutting off the same; count three for "wantonly and wrongfully" cutting off such service by defendant's servant or agent acting within the line and scope of his authority; count four for "wrongful refusal" to supply plaintiff water service; and count six for "wantonly and wrongfully" refusing to supply water service.

These several counts show the relation of public service water company and customer between the parties, that plaintiff had paid for water service at his residence, giving its street number, for the first quarter of 1928, as per bill rendered by defendant, and that, nevertheless, his water supply was cut off February 16, 1928.

The facts being shown out of which the duty to furnish water service arose, a general averment that the discontinuance and refusal of such service was wrongful, negligent, or wanton is sufficient.

Failure to aver the bill rendered by defendant was for the correct amount, or that it identified the premises where service was being received, furnishes no ground of demurrer.

Such matters, if an answer to the complaint under all the facts were defensive, and were properly presented under plea in short by consent.

Plaintiff, during the year 1926, was a customer of defendant company at No. 1222 Thirteenth avenue in Bessemer. In November of that year plaintiff removed to No. 1230 on the same street. He went to the company's office, signed up for water service at his new place of residence, adjusted his old account, and paid for the new service to January 1, 1927. Early in January, 1927, the company made out against him a bill for the first quarter of that year, and mailed it to him at his rural mail address which had not been changed. He received the bill, paid it, and obtained the company's receipt for his quarterage.

By mistake at the office the bill was made out for $2.40, the rate at the former place, instead of $2.75, the rate at his new location. For convenience of the company the bills were made to show the ledger numbers of accounts against customers. This bill, by mistake, showed the ledger number of the old account. Plaintiff's account, under the new number, showing no payment, an order was issued to the cut-off man, who proceeded to cut off plaintiff's water supply, but upon the receipt being presented by plaintiff's wife the water service was restored at once.

A second cut-off order was issued some days later, and on February 16, 1927, plaintiff's water supply was cut off, and so remained until about April 11th thereafter, when plaintiff's attorney arranged for payment of the advance quarterage beginning on April 1st, and the service was resumed.

Thus far the facts are without dispute.

On the day after water was cut off plaintiff, who had not been seen before, went to the company's office and showed the management his receipt. The parties differ as to what then transpired. According to plaintiff the local manager demanded the cut-in fee for restoring the water service, which plaintiff declined to pay.

According to defendant, plaintiff was asked to sign a receipt for the money paid that the same might be charged back on the old account and credited upon the new, and this the plaintiff declined to do.

Under the undisputed facts plaintiff was due to recover on the counts in simple negligence, both for cutting off the water supply and for refusal to restore the service.

The contention that cutting off the water was due to plaintiff's mistake in making payment of a bill showing the amount and ledger number of the former service is untenable. The bill was a demand for his advance quarterage and paid for his own service, not that to be furnished the new occupant of the former place. Having received and retained plaintiff's money covering service due to and beyond the date it was cut off, he was due the service. Cutting it off as a result of defendant's mistake in bookkeeping was negligence.

Refusal to restore water service was not justified by plaintiff's refusal, if he did, to sign a receipt which would constitute evidence that he had paid on another's account, not on his own. He was called upon to do nothing tending to justify the cutting off of his water, which had already occurred.

It is suggested in argument that water companies operate under law-made rates, like railroads; that an error in making out the bill does not release the claim for any balance; and that since plaintiff was due to pay 35 cents more, the difference in rate between the two connections, he cannot complain of refusal of service without payment of same.

No evidence tends to show any demand for this difference, nor a refusal of service for its nonpayment. If such fact where shown, it would not excuse refusal of water service for the time...