Carson v. Fort Smith Light & Traction Company

• Decision Date: 02 June 1913
• Citation: 158 S.W. 129,108 Ark. 452
• Parties: CARSON v. FORT SMITH LIGHT & TRACTION COMPANY
• Court: Arkansas Supreme Court

158 S.W. 129

108 Ark. 452

CARSON v. FORT SMITH LIGHT & TRACTION COMPANY

Supreme Court of Arkansas

June 2, 1913

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; reversed.

STATEMENT BY THE COURT.

John Carson and his wife sued the Fort Smith Light & Traction Company for damages, alleging that the damage resulted from the company's wrongfully turning the gas already paid for out of the meter and depriving them of the use thereof.

Appellee company is a public service corporation furnishing gas to the people of Fort Smith, it's consumers, under contract, one of whom was John Carson. The gas was being used for all purposes in his home and measured by meter, into which, upon the dropping in of a quarter, 1,000 feet of gas was delivered. The price of the gas at first was twenty-five cents per thousand feet, and under the contract or the application made by Carson for gas, the bills were to be paid monthly. The company gave notice of the increase of the price of gas to thirty-five cents per thousand cubic feet effective the 1st of April. On the 19th day of April, John Carson, upon leaving home to go to his work two miles distant, left a quarter with his wife to be dropped into the meter in case the gas should be consumed before his return. A quarter's worth of gas usually lasted twenty-four hours. About noon this money was put into the meter. About 3:30 the gas company's agent came and took the money out of the meter--$ 3.45; changed the meter so it would thereafter register at the rate of thirty-five cents per thousand feet and turned off all the gas, turning the meter back to zero. He could have collected the money from the meter and changed it without turning off the gas. The day was damp and cold in the morning, and Mrs. Carson had been sick for two or three weeks, and was just convalescent. Upon the fire's going out, she complained to the agent of the gas company, insisted that he should return her quarter for the gas paid for and not consumed, and was told that the gas would flow again upon dropping in another quarter. She told him she had no other quarter and called up the manager of the gas company and told him that "the fellow had taken all her money and left no gas in the meter, and that she was sick and had no fire and did not have a cent of money in the house," and the manager told her that was the instructions, to take all the money in the meter. She then rang up her husband, told him what had occurred, and he told her to try and get a quarter. She then sent her little six-year old boy to six of her neighbors to try to borrow a quarter, and failed to get one. The older boy was in school, and her sister-in-law, who was staying with her, was not acquainted in the neighborhood. There were some places in the neighborhood to which the boy did not go because the people were not her acquaintances, and she did not associate with them. After failing to get the quarter to put in the meter, she wrapped up and sat around a-while, and finally got so cold she went to bed. She began sneezing and almost had a chill before going to bed. She had been sick in bed before for three weeks, and was just recovering. Her lungs began to fill up, and by night, she had a pronounced case of asthma, and was in a very bad condition.

Her husband returned home at about 7 o'clock, and put a quarter in the gas meter and gas was immediately supplied. He also got medicine for her; they were not able to get the physician there until the next day. She did not lie down that night, and for about three months thereafter was sick and could not lie down to sleep, but had to sit propped up, and she still sleeps about as much sitting up in bed as she does lying down.

The physician testified that she had been suffering from grippic bronchitis, for which he attended her about two weeks, and that she had gotten better and been discharged as a patient and when he was called again to see her, he found her suffering with asthma, with which she is still affected.

On that day the weather bureau statistics show the temperature was at 7 A. M., 49 degrees; at 12 noon, 61 degrees; at 2 P. M., 68 degrees; at 3 P. M., 72 degrees; at 4 P. M., 75 degrees; at 5 P. M., 70 degrees; at 6 P. M., 66 degrees, and at 7 P. M., 65 degrees.

The company's agent, who changed the meter, said Mrs. Carson asked him why he turned the gas off, and he explained to her, "Because she had been using it nineteen days on the twenty-five-cent rate, and other people paid thirty-five cents. She did not understand me, and seemed to be a little bit mad, and I told her to call up Mr. Parker, and she did so, and came back and told me all right."

The testimony shows that twenty-five cents worth of gas, 1,000 feet, usually lasted the family twenty-four hours, and that it had only been burning from 12 until 3:30 o'clock after the last quarter was dropped in. The man changing the meter register testified, however, that there was only about ten cents worth of gas in the meter not consumed when he changed it and turned it back to zero.

The court instructed a verdict for the defendant, and from the judgment thereon, this appeal comes.

Judgment reversed.

J. A. Gallaher, for appellants.

1. The court erred in excluding the contract sought to be introduced in evidence by plaintiffs.

2. A peremptory instruction to find for the defendant was an invasion of the province of the jury. 10 Cyc. 350; 105 Ark. 136.

3. The contract to furnish gas was never changed from twenty-five cents to thirty-five cents per 1,000 cubic feet. The corporation could change the price of the gas only on January 1 or July 1. Act 282, Acts 1905; 91 Ark. 89-92.

4. That appellee had the right to take out the money in the depository of the meter, at any time, is admitted; but it was not necessary to stop the flow of the gas in order to extract this money, and when, in addition to withdrawing the money, appellee stopped the flow of gas that the last deposit had paid for, it committed a wilful tort. Cooley on Torts, 60, 69.

5. What constitutes ordinary care is a question for the jury. 13 Cyc. 71; Id. 76; 150 S.W. 348.

6. Appellee knew when it cut off the gas that it was committing a wrongful act. Appellants are entitled, therefore, to exemplary damages. Hale on Torts, 34. The refusal or failure of a public service corporation to furnish gas which it has contracted to furnish to its patrons is a tort. 146 Ind. 655; 36 L. R. A. 539; 46 N.E. 17; 6 L. R. A. (N. S.) 1171.

Hill, Brizzolara & Fitzhugh, for appellee.

Plaintiff admits that the price of gas had been increased to thirty-five cents per thousand on the 1st of April; that she knew of this advance in price; that she had gotten about 18,000 feet of the gas, on which she had paid only twenty-five cents per thousand. When appellee removed the money from the meter, it left appellant still indebted to appellee, for gas used, in the sum of $ 1.28. Appellee acted within its legal rights in taking the money from the meter, and was guilty of no negligent, careless or wrongful act.

KIRBY, J. SMITH, J., dissenting.

OPINION

KIRBY, J., (after stating the facts).

The testimony is undisputed that the appellee company had been furnishing gas to appellants at 25 cents per thousand cubic feet and had the right to change the price thereof upon notice to its customers and that the notice of the change in price to take place on April I had been duly given to appellants; that appellants were upon a slot meter which measured 1,000 feet of gas for consumption upon...