Birmingham Ry., Light & Power Co. v. Littleton

• Decision Date: 10 May 1917
• Docket Number: 6 Div. 534
• Citation: 77 So. 565,201 Ala. 141
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. LITTLETON.
• Court: Alabama Supreme Court

77 So. 565

201 Ala. 141

BIRMINGHAM RY., LIGHT & POWER CO. v. LITTLETON.

6 Div. 534

Supreme Court of Alabama

May 10, 1917

On Rehearing, December 20, 1917

Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.

Action by A.J. Littleton against the Birmingham Railway, Light &amp Power Company Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Act April 18 1911 (Acts 1911, p. 449) § 6. Affirmed. On application for rehearing. Application granted.

Sayre and Gardner, JJ., dissenting on rehearing. Somerville, J dissenting in part.

Huey & Welch, of Bessemer, and Tillman, Bradley & Morrow, of Birmingham, for appellant.

Goodwyn & Ross, of Bessemer, for appellee.

THOMAS J.

In the instant case the trial was had on count 1, in which it was averred that defendant contracted with plaintiff to furnish electric current to the latter's residence, No. 1431 Dartmouth avenue, in the city of Bessemer. The count was not subject to the demurrer directed thereto. It was averred by way of implication, as a consideration, that the defendant, for a reward, was furnishing to the public electricity for the purposes of lighting and heating, and that under contract it engaged to furnish plaintiff at his residence such current for lighting.

The action being for a breach of the contract--and not in assumpsit or for the breach of a duty growing out of a contract--the cases of Newton v. Brook, 134 Ala. 269, 32 So. 722, Spencer v. Bessemer Water Works, 144 Ala. 587, 39 So. 91, Malone-Beal Co. v. Greer, 169 Ala. 534, 53 So. 810, and B.R.L. & P. Co. v. Abbott, 6 Ala.App. 643, 60 So. 970, have no application. The averment was not that the defendant promised and undertook to furnish the current. If it had been, then, under the foregoing authorities, it would have been necessary to specifically aver the consideration for the undertaking. The averment was that defendant contracted with plaintiff to furnish electric current at his residence, and that it failed to deliver the same as per contract. If the suit had been ex delicto for the breach of a duty growing out of the contract, it would have been necessary to aver the consideration. The distinction between actions ex contractu and actions ex delicto is clearly pointed out in Wilkinson v. Moseley, 18 Ala. 288, and it has since been adhered to by our court. Tucker v. Mobile Infirmary, etc., 191 Ala. 572, 575, 68 So. 4, L.R.A. 1915D, 1167.

Defendant pleaded in short by consent the general issue, with leave to give in evidence any matter which would be "admissible in evidence if well and properly pleaded."

The trial court submitted to the jury two elements of recoverable damages: (1) Inconvenience to plaintiff in the use of his residence, because of defendant's failure to furnish electric current; (2) the expense plaintiff incurred in "wiring" his residence for the reception of such current.

The evidence tended to show that at the time in question the defendant, a public service corporation, was engaged in furnishing to private consumers in the municipality of Bessemer, for a reward, electric current for light and heat, under the reasonable rules and conditions of the company and in consonance with law; that plaintiff's residence which was sought to be lighted was located within the corporate limits of Bessemer and within the service radius of defendant; that plaintiff (through his wife) made application in writing to defendant for electric current to be furnished for said residence, and made the required cash deposit as per the terms of the application prescribed by defendant. Said application for electric current contained, among other stipulations, the following:

"The company shall deliver electricity at a point outside of the premises designated by the company's representatives. All wiring from the point so designated, all interior wiring and all electric equipment on the premises shall be at consumer's expense, and all electric equipment (including wiring), or any changes therein, shall at all times meet the requirements of the city authorities or the Southeastern Underwriters' Association, and the company may cut off the current supply, without notice, at any time such wiring does not meet such requirements. All electrical equipment on the premises shall be furnished by and at the consumer's expense, and the company shall not be liable for damage to person or property due to the installation, maintenance, or operation of any electrical equipment on the premises, other than damages occasioned by the company's willful neglect or default. Nothing herein contained is a guaranty by the company of a constant supply of electricity, and the company shall not be liable in any way to the consumer for interruption in service. *** The commencement of service by the company at the premises shall be an acceptance by the company of this application, which shall thereupon become a contract between the company and the consumer. Either party may terminate such contract on three (3) days' notice to the other party, given as hereinafter provided. *** No promise, agreement, or representations of any agent or employé of the company shall bind the company unless expressly incorporated herein."

After the application was made, investigation by defendant's agent revealed the fact that an extension of the service wires was necessary in order to reach plaintiff's premises. A diagram (made a part of the record) showed that defendant's nearest line, or service pole supporting the same, was 115 feet distant from plaintiff's residence, which residence was located on the corner of Dartmouth avenue and Fifteenth street, and that defendant's line and service poles extended from Sixteenth street west to within 115 feet of Fifteenth street.

For the defendant, the witness Stone explained the relative location of plaintiff's residence and the necessary extension of the service as follows:

"I made the diagram, it is correct. *** The nearest pole to Mr. A.J. Littleton's house is 115 feet. *** Mr. Littleton's house is right down in the corner" of Dartmouth avenue and Fifteenth street. "The distances there are in proportion, about four poles to a block and all about the same distance."

The distance over which the secondary wire was to be extended was 115 feet, in direction due west from the last of the three service poles then standing along the north side of the alley or street, and from Sixteenth to Fifteenth street.

Defendant's evidence tended to show further that after plaintiff applied for electric current defendant sent a Mr. Leopard to make the connection; that he found insufficient pole line (as above indicated) with which to reach the house with the service, and reported the fact to the office, and that thereafter the company sent him "to explain to Mrs. Littleton what the trouble was." Witness said:

"I told her we could not reach her from where the pole was at the present time; that there would have to be some arrangements made to set some poles in there to where we could reach her, and if she wanted to come down and make that arrangement with the company to handle it, it was all right, and if she didn't, we would return her deposit she made for the meter. She decided to take the money, and I gave the money to her and she signed a petty cash voucher for it, and I returned it to the office."

That application for the service was first made on December 9th, and the money returned to Mrs. Littleton on the next day. That Mr. Littleton came to defendant's office on the 14th of December, and "wanted to know if we [the defendant] were going to furnish the service" applied for to his residence. On December 16th, the request was made by defendant to its construction department for estimate and authority to place the necessary pole, and make the extension of the secondary wire to connect with plaintiff's residence. In response the requested estimate was completed, and approval by that department was given on December 23, 1915.

The evidence was to the further effect that plaintiff made demand on defendant for immediate service on December 15, 1915, offering to repay therefor the meter fee theretofore returned by defendant's agent to plaintiff's wife, which offer was declined by defendant, because coupled with the demand by plaintiff for immediate service. Thereafter, and before Christmas, plaintiff employed counsel, who communicated with defendant immediately as to its failure to furnish the electric current applied for to said residence.

Defendant's evidence further tended to show that it notified plaintiff and his counsel of its willingness and readiness to install the service line and furnish the current. However, this was not done, or had not been done at the date of the trial, which was March 30, 1916. Suit was brought on January 31, 1916.

It was without dispute that about half a day would be required to go out from Birmingham and place the necessary pole whereon to extend the required service wires.

Under the circumstances of the case, it was defendant's corporate duty, within a reasonable time after plaintiff's due application and compliance with its reasonable regulations in that behalf, to extend its lines and comply with the application. Failing in this duty or contract obligation, defendant was liable to such purchaser or prospective purchaser, of current, for the proximate pecuniary loss caused by such failure, and, in addition thereto and in connection therewith, the jury were authorized to consider, as an element of recoverable damages, the inconvenience and annoyance to which plaintiff was subjected by being denied, or deprived of, such current, within the terms of the contract. Birmingham Waterworks Co. v. Ferguson, 164 Ala. 494, 51 So. 150; Birmingham Waterworks...