Carolina Power & Light Co. v. Johnston County Elec. Membership Corp.

• Decision Date: 30 June 1937
• Docket Number: 450.
• Citation: 192 S.E. 105,211 N.C. 717
• Parties: CAROLINA POWER & LIGHT CO. v. JOHNSTON COUNTY ELECTRIC MEMBERSHIP CORPORATION et al.
• Court: North Carolina Supreme Court

192 S.E. 105

211 N.C. 717

CAROLINA POWER & LIGHT CO. v. JOHNSTON COUNTY ELECTRIC MEMBERSHIP CORPORATION et al.

No. 450.

Supreme Court of North Carolina

June 30, 1937

Appeal from Superior Court, Wake County; Walter L. Small, Judge.

Suit by the Carolina Power & Light Company against the Johnston County Electric Membership Corporation and others, wherein a temporary restraining order was issued. From a judgment dissolving the temporary restraining order and dismissing the action, the plaintiff appeals.

Judgment affirmed in accordance with opinion.

This is an action for judgment:

1. That the defendants be perpetually restrained and enjoined:

"(a) From, in any manner or by any means, inducing, persuading coercing or intimidating any person or persons to fail or refuse to comply with his or their contracts or agreements with the plaintiff to wire his or their premises and to take electric service from the plaintiff;

(b) From, in any manner or by any means, inducing, persuading coercing, or intimidating any person or persons to discontinue the taking of electric service from the plaintiff in violation of his or their contracts or agreements with the plaintiff to take such service.

(c) From, in any manner or by any means, interfering with the plaintiff in the construction and operation of its rural lines in Johnston County, where plaintiff has lawfully constructed and is now operating such lines, and from inducing, persuading, coercing, or intimidating prospective customers of the plaintiff along such lines not to take electric service from the plaintiff.

(d) From constructing or operating any rural electric lines paralleling any rural lines of the plaintiff, or in territory occupied by the plaintiff, or in territory contiguous to the rural lines of the plaintiff, until or unless a certificate of convenience and necessity is first obtained by the defendant Johnston County Electric Membership Corporation from the North Carolina Utilities Commissioner as provided by law."

2. That the defendant Johnston County Electric Membership Corporation is a public utility corporation and as such is required to obtain from the North Carolina Utilities Commissioner a certificate of convenience and necessity before it may proceed further with the construction or operation of rural lines in competition with the plaintiff.

3. That plaintiff have such other and further relief as the court shall find it is entitled to, and recover of the defendants the costs of the action.

From judgment dissolving a temporary restraining order and dismissing the action, the plaintiff appealed to the Supreme Court, assigning error in the judgment.

Judgment dismissing electric utility's suit to restrain defendants from inducing utility's customers to violate their contracts and for other relief was affirmed where Supreme Court divided equally on question as to whether there was error in judgment dismissing action on ground that there was no evidence tending to show that defendants had wrongfully caused customers to violate their contracts with utility and would continue to do so as alleged in the complaint.

W. H Weatherspoon and A. Y. Arledge, both of Raleigh, Abell & Shepard, of Smithfield, and MacLean, Pou & Emanuel, of Raleigh, for appellant.

I. M. Bailey, of Raleigh, for appellees.

CONNOR Justice.

At the hearing of this action in the superior court, the court was of opinion that on all the evidence offered by both the plaintiff and the defendants, the plaintiff is not entitled to the relief prayed for in its complaint. Accordingly, the temporary restraining order issued in the action was dissolved, and the action was dismissed by judgment as of nonsuit. On its appeal to this court, the plaintiff contends that there is error in the judgment:

First. For that the judgment is predicated primarily on the erroneous holding of the court that the defendant Johnston County Electrica Membership Corporation was not required, before beginning the construction or operation of its facilities for serving its members by furnishing them electricity for lights and power, to obtain from the Utilities Commissioner of North Carolina a certificate that public convenience and necessity requires or will require the construction and operation of said facilities by the said defendant; and,

Second. For that there was evidence at the hearing of the action sufficient to show that the defendants, other than Thompson Electrical Company, have wrongfully and unlawfully caused and will wrongfully and unlawfully continue to cause customers of the plaintiff to violate their contracts or agreements...