Batman v. Louisville Gas & Electric Co.

• Decision Date: 12 March 1920
• Citation: Batman v. Louisville Gas & Electric Co., 187 Ky. 659, 220 S.W. 318 (Ky. Ct. App. 1920)
• Parties: BATMAN v. LOUISVILLE GAS & ELECTRIC CO.
• Court: Kentucky Court of Appeals

220 S.W. 318

187 Ky. 659

BATMAN v. LOUISVILLE GAS & ELECTRIC CO.

Court of Appeals of Kentucky.

March 12, 1920

Rehearing Denied May 7, 1920.

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Action by Thomas J. Batman, Jr., for himself and others, against the Louisville Gas & Electric Company. From a judgment dismissing the petition, on demurrer, plaintiff appeals. Affirmed.

Jos. S Lawton and Grover Sales, both of Louisville, for appellant.

Mat O'Doherty and A. P. Humphrey, both of Louisville, for appellee.

CLARKE J.

The appellee, Louisville Gas & Electric Company, supplies natural gas to the residents of the city of Louisville under a franchise contract at a stipulated price per thousand feet subject, however, to certain discounts when the pressure of gas at the point of consumption is less than three ounces to the square inch.

On the 2d of February, 1918, the plaintiff, now appellant, Thomas J Batman, Jr., for himself and on behalf of all other gas consumers in the city similarly situated, filed this suit against the company, alleging as a cause of action that in the months of December, 1917, and January, 1918, the pressure of gas at the point of consumption fell below the standard of three ounces per square inch; that the company refused to give credit for the discounts required by its franchise contract with the city when the pressure of gas fell below the fixed standard, and collected of plaintiff and several thousand other gas consumers in the city sums in excess of the amounts due; that the excess collected of plaintiff for the month of January, 1918, was $1.70; that for the month of December, 1917, the bill rendered for gas consumed by him was $1.55 in excess of the amount justly due under the contract; that he refused to pay the $1.55 excess charge, and the company accepted the amount which he claimed to be due, but refused to give him a receipt in full for that month; that a great many of the other consumers in the city had paid the overcharges for both months, as did plaintiff in January, while a great many others had refused to pay the overcharges, as did plaintiff in December, and to such consumers the company gave a receipt only for the amount paid and refused to give a receipt in full. The plaintiff prayed that he be permitted to sue on behalf of the many thousands of gas consumers in the city who, like him, had been refused a receipt in full when they deducted the amount of the alleged overcharge, and for all those who had paid the overcharge, as he did in January 1918; that the cause be referred to the master commissioner to ascertain the excess amounts paid by all other consumers to the defendant under the contract, when said excess amounts were paid; and that the defendant company be required to submit its books and records to the commissioner to enable him to prepare a statement of the excess payments made by all the gas consumers in the city; and that plaintiff and all others who had made overpayments recover of the defendant company the several amounts overpaid by each with interest and costs.

The company filed a special demurrer questioning the jurisdiction of the court, which was sustained and the petition dismissed. Plaintiff appeals.

The only relief asked was separate money judgments for plaintiff and those for whom he would sue, each less than $50. The jurisdiction of circuit courts in civil cases for the recovery of money is limited to cases where the amount in controversy exceeds $50. Kentucky Statutes, §§ 966 and 1086. Consequently, the court did not have jurisdiction of the case unless plaintiff, whose claim is less than $50, had the right to sue in that court not only for himself, but also for the numerous other gas consumers in the city who, like him, are alleged to have similar claims against the company for various amounts. Plaintiff claims the right to prosecute this action in the circuit court for himself and all other parties similarly situated, under section 25 of the Civil Code of Practice, which reads as follows:

"If the question involve a common or general interest of many persons, or if the parties be numerous and it is impracticable to bring all of them before the court within a reasonable time, one or more may sue or defend for the benefit of all."

As a matter of fact, this section of the Code never confers jurisdiction, but only permits one or more of the proper parties to an action in any court, and of which the court has jurisdiction, to sue or defend for all in two states of case: (1) Where the subject-matter of the litigation is of a common or general interest to many persons; and (2) where the parties are numerous, and it is impracticable to bring all of them before the court within a reasonable time. That this is true becomes apparent at once, if we assume that many or numerous parties have a common or general interest in a claim against A. for $40 and similar interests in a like claim against B. for $400. One or more of such parties, under section 25 of the Code, could sue or defend for all in the court having jurisdiction of the subject-matter of the litigation, $40 in one instance and $400 in the other; but it cannot be ascertained from this section what court has jurisdiction of either claim. The jurisdiction of the court over, as well as the proper parties to, the action in either state of case, is controlled by other sections of the Code and statutes. In the first class it often happens, however, that the jurisdiction of the court and the proper parties to the action, as well as the right of one party to sue or defend for all, depend upon the same fact, namely, a common or general interest in the subject-matter of the litigation. As a consequence, jurisdiction, proper parties, and the right of one party to sue or defend for all are often treated as one and the same thing; whereas, obviously they are entirely separate and quite different even when arising from the same condition, namely, the character of the litigation. This is only true, however, of the first of the two classes of cases in which one party may sue or defend for all. In the second class no such confusion can arise, since the condition upon which one party to an action may sue or defend for all depends solely upon their number and the practicability of personal service, which alone cannot, of course, confer jurisdiction or determine proper parties. Under all of the authorities, there must be some community of interest in the subject-matter of the controversy before a court can exercise in one case jurisdiction over separate claims of different parties under which circumstances the jurisdiction depends, not upon the amount of one or all of the separate claims, but upon the amount or character of the subject-matter, that is, in the thing in which they have the community of interest.

Clearly, therefore, this second class of cases, where one may sue or defend for all, as does the first, applies only to proper parties to an action of which the court has jurisdiction, and the second part of section 25 of the Code cannot possibly aid plaintiff in sustaining the court's jurisdiction. The court in this case had jurisdiction, if at all, as is always the case, quite irrespective of the number of claimants and the right under section 25 of the Code of one of them to sue or defend for all, because and only if plaintiff and those for whom he would sue had a common or general interest in the subject-matter of the controversy of which the court had jurisdiction.

Whether or not the circuit courts of this state have jurisdiction of the subject-matter involved in a controversy where the separate claims of the different parties to the action are below the jurisdictional amount has been before this court in many cases. It has never been sustained...