Birmingham Waterworks Co. v. Wilson

• Decision Date: 20 April 1911
• Citation: 2 Ala.App. 581,56 So. 760
• Parties: BIRMINGHAM WATERWORKS CO. v. WILSON.
• Court: Alabama Court of Appeals

56 So. 760

2 Ala.App. 581

BIRMINGHAM WATERWORKS CO. v. WILSON.

Court of Appeals of Alabama

April 20, 1911

On Application for Rehearing, December 14, 1911.

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by C. W. Wilson against the Birmingham Waterworks Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

London & Fitts, for appellant.

Bowman Harsh & Beddow, for appellee.

PELHAM, J.

Although a number of assignments of error are made, all of those insisted upon, except as to the question of excessive damages raised on the motion for a new trial, go to the right of the appellee (the plaintiff below) to recover of the appellant (the defendant below) exemplary, punitive, or vindictive damages. The question is presented by appellant in different forms: First, by exceptions reserved to certain parts of the oral charge of the court submitting to the jury the right to award appellee exemplary or punitive damages; second, by exceptions reserved to the refusal of the trial court to give charges requested in writing by the appellant to the effect that appellee was not entitled to recover such damages; and, third, by exceptions reserved to the court's refusal to give the general affirmative charge as to that count of the complaint seeking to recover punitive, exemplary, or vindictive damages.

The plaintiff (below) was a customer of the defendant (below) water company, in the sense that the water company, as a public service corporation, was furnishing the plaintiff water for domestic purposes. In February, 1909, the plaintiff's supply of water at his home in Ensley was turned off by the agents or employés of the defendant company, notwithstanding he had previously paid for water service for the first quarter of that year, or the months of January, February, and March of the year 1909. These facts are not seriously disputed, and show a wrong inflicted upon the plaintiff through the defendant's negligence. Was the defendant's negligence of such a degree as to entitle plaintiff to have the question of awarding punitive exemplary, or vindictive damages submitted to the jury?

The plaintiff testified that about the second or third day after the water supply was turned off he called up the defendant company's office over the telephone, gave the number of his meter, and inquired if they had ordered the water cut off, and was informed they had. Upon inquiring the reason, plaintiff was informed he would have to pay the water rent to get it turned on. To this plaintiff replied he had paid the rent, and owed nothing on that account. The water was not turned on, and about three or four days later plaintiff again called the company's office, over the telephone, and talked with the manager, a Mr. Foster, telling him of the inconvenience of having to carry water from some distance to his home. The manager, Foster, called to some of the office force, and had the books examined, and stated the books of the company showed the plaintiff's water rent for the quarter in question had not been paid. The plaintiff informed the manager in this conversation over the telephone that his water rent was paid, and he was not responsible for the books failing to show it, and the defendant's employé or officer closed the conversation by "hanging up" the telephone. The water was not turned on plaintiff's premises, and no further complaint was made until four or five days after this second conversation, when plaintiff again called the defendant's office over the telephone and talked with some one in the office, who, he thinks, was the same person, Mr. Foster, the manager. In this conversation plaintiff informed the party in the company's office, in answer to an inquiry of how he knew he had paid the disputed water rent, of having a receipt, and where it could be seen--in his lawyer's office. "Immediately after that the water was turned on." The plaintiff also stated: "Every time I called, I heard them looking up the books. I think on each conversation they told me the books failed to show that the water rent had been paid. I did not tell them I had a receipt until the last conversation." In another part of the evidence plaintiff states he had informed the party to whom he talked over the telephone of having a receipt before the last conversation.

The other testimony in the case sheds no light upon the proposition of plaintiff's right to have the question of recovering exemplary, punitive, or vindictive damages submitted to the jury. There can be no question but that the defendant was guilty of negligence in cutting off plaintiff's water supply when it had been paid for; yet, if there was no evidence to warrant the submission of the question of punitive damages to the jury, if there was no evidence to justify awarding such damages, it was error to submit that question to the jury. Peters v. Southern Ry. Co., 135 Ala. 533, 33 So. 332; Birmingham Ry. L. & P. Co. v. Franscomb, 124 Ala. 621, 27 So. 508, and cases cited. The appellant insists that the trial court erred in allowing the jury to consider giving punitive damages under the evidence adduced upon the trial in this case.

It has long been settled by a line of well-considered decisions in this state that, where the injury is...