Bailey v. Interstate Power Co.
| Decision Date | 21 January 1930 |
| Docket Number | 39145 |
| Citation | 228 N.W. 644,209 Iowa 631 |
| Parties | O. S. BAILEY, Appellant, v. INTERSTATE POWER COMPANY et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Allamakee District Court.--W. L. EICHENDORF, Judge.
Action in equity for injunction to restrain, mandatorily, the defendant power company from further refusal to furnish electrical energy to plaintiff. This appeal is from the decree entered upon the final hearing. Judgment and decree were entered, dissolving the temporary injunction originally issue, and dismissing plaintiff's petition, with costs. Plaintiff appeals.
Affirmed.
A. E Sheridan and Hart & Hart, for appellant.
E. R O'Brien and Hurd, Lenehan, Smith & O'Connor, for appellees.
DE GRAFF, J.
This is an injunction proceeding, and the primary facts at this point may be briefly stated. It appears that, on and prior to the 14th day of May, 1924, the plaintiff (appellant) owed a considerable amount of money to the defendant power company, on account of light, power, and heat furnished him by said company. These arrearages and certain other matters were provocative of a compromise agreement and settlement, which was reduced to writing and signed by the respective parties on the 14th day of May, 1924. Under the terms of this agreement, the power company credited the appellant Bailey with the sum of $ 175 on the then arrearage account, "in full consideration of damages sustained on printing agreement, and further, the party of the first part [power company] agrees to liquidate the present arrearage account of O. S. Bailey by the purchase of printed matter from him at custom rates." It was further agreed that Bailey should be placed "on the advertising list of the power company," and that Bailey should pay "all current months' bills due in excess of the amounts due for advertising for the current month." This agreement by its terms liquidated all claims for damages of either party to the date of the signed agreement.
The plaintiff Bailey is the proprietor and publisher of a weekly newspaper of general circulation in the city of Waukon, Iowa, and neighboring territory. The defendant L. A. Walker is local manager of the power company.
On July 25, 1925, a bill was turned into the local office of the power company, to apply on the current electric bill, which included a $ 7.00 printing bill; and it is this $ 7.00 bill which provoked the lawsuit, by reason of the fact that the local office would not give Bailey credit for this item on his current light bill. The claim was that Bailey was not entitled to credit under the terms of the memorandum agreement of May 14, 1924. In other words, it was up to Bailey to pay in cash the electric bill for the current month. It appears from the testimony that, when plaintiff came in (sometime during the latter part of July, 1925), to pay his current electric bill for June, 1925, he tendered, as part payment thereof (with other items sufficient to make a total equal to the amount of his June bill), a $ 7.00 printing bill. The cashier of the power company told him that part of his tender could not be allowed on his current electric bill, but would have to be applied on his old account. She gave him no receipt, therefore, for his June electric bill. However, she gave him credit on his old account for the $ 7.00 item.
There were conversations between the parties for a few days respecting this matter, but nothing resulted from these conversations. The power company did, after final demand for the payment of the current light bill, on July 29th, discontinue the furnishing of electrical energy used in connection with plaintiff's business. This act culminated in the filing of this petition for injunction, which was mandatory in character, to restrain the defendant "from further refusal to furnish electrical energy to plaintiff." It is obvious that the appellant knew of the intention of the power company to do the thing it did do, since the appellant testified that he told the local manager that he did not want the wires cut, and that he tendered him "some money" for power. This tender was refused. It is also apparent that the appellant did not pay the current electric bill in full. The conflict between the parties arises from the fact that there were two accounts: one a local, and the other an account with the parent company. This was recognized by the agreement of May 14th in the settlement of the dispute. The appellant, upon the trial, was not able to say that he ever had any bill for job work between May 14, 1924, and the act occurring on July 29, 1925, whereby he was entitled to an offset against the current light and power bill. The local bills against the power company were presented by Bailey during the month that his current light and power bill was presented by the company, and it is quite clear that the appellant did not make any distinction between advertising matter given him by the local office at Waukon and orders for printing that came to him from the parent organization. Appellant charged it "all against local current bills." The testimony of the cashier of the power company, who had served the company during the preceding sixteen years, and who was acquainted with the original contract of settlement, is to the effect that part of appellant's bills which he did bring in for local advertising was applied on his current month's bill, and that part of his bills for printed matter was applied on his old account. In the instant case, the cashier examined the receipted bills for advertising and printing tendered by the appellant, and told him there was $ 7.00 of it that could not be applied on his current month's bill, but that it had to be applied on the old account. This witness further testified that, after the agreement of settlement in 1924, she never applied on his current bill any receipted bill for printing.
We now turn to appellant's propositions.
I. It is contended (a) that a public utility corporation operating under franchise cannot discriminate between its customers and must furnish service to all alike, and (b) that ill feeling or hatred toward any one of its customers is no ground for refusing to furnish electrical energy. It may be conceded, under the doctrine of Phelan v. Boone Gas Co., 147 Iowa 626, 125 N.W. 208, that a public utility franchise holder cannot maliciously cut off the supply of electrical energy theretofore furnished...
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