Arnold v. Carolina Power & Light Co.

• Decision Date: 10 January 1933
• Docket Number: 13541.
• Citation: 167 S.E. 234,168 S.C. 163
• Parties: ARNOLD v. CAROLINA POWER & LIGHT CO.
• Court: South Carolina Supreme Court

167 S.E. 234

168 S.C. 163

ARNOLD v. CAROLINA POWER & LIGHT CO.

No. 13541.

Supreme Court of South Carolina

January 10, 1933

Appeal from Common Pleas Circuit Court, Sumter County; W. H Townsend, Judge.

Action by Macy Arnold against the Carolina Power & Light Company. From an order granting defendant's motion for a nonsuit, plaintiff appeals.

Affirmed.

L. D Jennings, of Sumter, for appellant.

Lee & Moise, of Sumter, and Dargan & Paulling, of Darlington, for respondent.

BLEASE C.J.

The plaintiff brought this action, one for damages in the sum of $2,950, against the defendant, a public service corporation, engaged in furnishing electric current, because of the removal from plaintiff's place of a meter and cutting out the electric current service. The cause of action, according to the allegations of the complaint, was based on the theory that there was a bona fide dispute between the plaintiff and the defendant as to the amount due by the former to the latter on the account, and that the acts of the defendant in discontinuing the service, in such circumstances, were wrongful and unlawful.

The defendant denied generally the allegations of the complaint. In addition, it alleged that the monthly bill for the service previously furnished to the plaintiff, to be paid not later than August 7, 1931, amounting to $8.90, was proper and correct, and, although so admitted to be by the plaintiff, he had not made, or tendered, payment therefor within the agreed time. The defendant admitted that the succeeding monthly bill, in the sum of $9.74, was erroneous, due to a mistake in the reading of the meter, which bill it corrected, and offered to correct, as soon as the matter was properly called to its attention. The defendant further said that the service had been discontinued because of plaintiff's failure and refusal to pay the admitted correct bill of $8.90, and not because of failure to pay the later bill for $9.74.

The trial, in the court of common pleas for Sumter county, before his honor, Circuit Judge Townsend, resulted in the granting of the defendant's motion for a nonsuit, and from the order thereon, the plaintiff has appealed.

The legal principles mainly applicable to the case here are found in the following decisions of this court: Poole v. Paris Mountain Water Co., 81 S.C. 438, 62 S.E. 874, 128 Am. St. Rep. 923; Johnson v. Carolina Gas & Electric Co., 106 S.C. 447, 91 S.E. 734; Benson v. Paris Mountain Water Co., 88 S.C. 351, 70 S.E. 897; and Barrett v. Broad River Power Company, 146 S.C. 85, 143 S.E. 650.

It has been held in all of those decisions that a consumer of water or electricity, furnished by a public service company, has the right to the continuance of the service, pending the adjustment of a bona fide dispute as to the amount due on his bill for service. On the other hand, those cases hold that the public service company has the right to discontinue its service to the customer upon the nonpayment by the customer of recent and just bills for the service furnished him, and has, also, the right to refuse a further supply of electricity or water until those bills are paid. Barrett v. Broad River Power Co., supra.

Applying the declared principles to the present case, the correctness of the order of nonsuit depends upon the evidence adduced at the trial favorable to the plaintiff's contention that the service was wrongfully discontinued at a time when there was a bona fide dispute of the bill claimed to be due by him to the defendant. A fair statement of the evidence, we think, is as follows:

The plaintiff had electric current furnished to the house in which he lived. He opened a shop for the repair of automobiles near his house about March 16, 1930. The electric current to the shop came through the same meter used for the house. His bill for electric service usually amounted from $1.60 to $1.80 per month. After operating the shop awhile, he put in a battery charger, not for the purpose of fully charging batteries, but to aid him somewhat in his work on automobiles. The electric current bill for the month ending July 25th, due under the contract to be paid not later than August 7th, amounted to $8.90. On complaint that the bill was excessive, a representative of the defendant company made an examination, and advised the plaintiff that the "charging outfit" had caused the great increase. The plaintiff seemed to be satisfied at the explanation. Asked, "Did you pay the bill then?" he replied that he did not, and "the reason I didn't pay it was that I just waited to see what the next bill was going to be, purposely." On August 7th, defendant notified plaintiff that, unless the July account of $8.90 was paid or arranged by August 12th "service will be discontinued without further notice." Pursuant to that notice the service was discontinued on August 27, 1931, payment not having been made.

The bill for the month ending August 25, 1931, amounting to $9.74, which defendant admitted to be a little excessive, was not past due on August 27th, when the service was discontinued, since the plaintiff had until September 5th to make payment. It is clear, therefore, that the notice that the service would be discontinued, given on August 7th, related to the bill for the month ending July 25th, and could have had no reference to the amount which would be due on August 25th.

If, therefore, the bill for the month ending July 25th, amounting to $8.90, was correct, due, and unpaid, and there was no bona fide dispute thereabout, under the cited decisions, the defendant company had the right to discontinue the service.

In addition to plaintiff's statement that he "purposely" waited beyond the time for payment, ten days after the due date of the bill, July 25, 1931, to make payment thereof, we find the following in his testimony:

"Q. That was the one you sent up about and he came to see about? A. Yes, sir.

"Q. And it was just shortly after that they came? A. Yes, sir.

"Q. You knew that bill was more than ten days due, and should have been paid, didn't you? A. Yes, sir.

"Q. But you had not paid it? A. No, sir.

"Q. And you didn't pay it? A. No, sir."

In reply to this question by the presiding judge, "Have you ever paid the amount you say you are due them," the plaintiff replied, "No, sir."

Much has been said in the argument of appellant's counsel on the question of tender. It is maintained that there was a tender of the proper amount due by the plaintiff to the defendant, and, if there was no such proper tender, that tender was unnecessary, since it was clearly shown that the defendant would not have accepted the tender of the sum only claimed to be due by the plaintiff. A close examination of the evidence, favorable to the plaintiff, does not disclose that he ever tendered the amount of the July bill, or that the defendant indicated at any time that it would not accept such payment. The only evidence relating to tender in any way whatever, had reference to the August bill.

Under the cited decisions, the order of nonsuit was proper, and the granting thereof is affirmed.

STABLER, CARTER, and BONHAM, JJ., concur.

ON PETITION FOR REHEARING.

PER CURIAM.

Appellant has filed a lengthy petition for rehearing. Therein, there is quoted at length much of the testimony set forth in the transcript of record. Some of the important parts of the testimony, however, are not set out. The burden of the petition is that this court fell into grievous error as to two important matters of fact in the opinion filed.

The first alleged error is that the current was not cut off on August 27, 1931, as the court said in its opinion. The second alleged error is that the service was not discontinued because of the failure to pay the bill admitted to be due on July 25th, but for failure of the appellant to pay the disputed bill due August 25th. The error last mentioned, if an error, relates back to the first alleged error.

As to the first alleged error, the appellant now says, which was not said in the brief he first submitted to the court, the brief being silent thereabout, "The fact is *** the respondent then, after September 9th, 1931, to-wit, on September 14th, 1931, discontinued the service. ***" (Emphasis ours).

If there was error in the statement of the court as to the time of the discontinuance of the service, if the discontinuance occurred, as appellant now says, on September 14, 1931 instead of on August 27, 1931 as the court stated, the fault is not with the court, but with the transcript of record as made up by the appellant. To sustain our conclusion that the record showed the date of discontinuance as being August 27th, and not September 14th, we point to the following matters appearing in the record:

The statement of facts, page 3, transcript of record, folio 1, shows that the action was commenced on September 16, 1931, by the service that day of the summons and complaint. The statement is very bare of facts, leaving the court, as is so often done, to examine all the pleadings and much testimony to gather the essential matters involved in the appeal.

The complaint did not allege the exact day the service was discontinued. Therein, however, it was said "And more than two weeks have elapsed since said current has been cut out." According to the complaint, drawn on or before September 16, 1931, the current had been cut out for "more than two weeks" previous to that day, therefore, it occurred, if the complaint was correct, about August 27, 1931. If the service was discontinued, as appellant now claims, on September 14, 1931, the language of the complaint was certainly misleading. If it occurred on September 14th, the suit was evidently hurriedly instituted, within two days or less from the time the "cut...