Carter v. Willis

• Decision Date: 20 April 1960
• Docket Number: No. 11085,11085
• Citation: 145 W.Va. 779,117 S.E.2d 594
• Court: West Virginia Supreme Court
• Parties: Elisha CARTER v. George W. WILLIS, Doing Business as Willis Water Works.

Page 594

117 S.E.2d 594

145 W.Va. 779

Elisha CARTER v. George W. WILLIS, Doing Business as Willis Water Works.

No. 11085.

Supreme Court of Appeals of West Virginia.

Submitted April 20, 1960.

Resubmitted on Court's own motion Sept. 27, 1960.

Decided Dec. 20, 1960.

Syllabus by the Court

1. Where a person has been injured by the refusal of a public utility to comply with a valid order of the Public Service Commission, the injured person may recover compensation therefor in any court of competent jurisdiction.

2. Where a customer of a privately owned water company has been injured by the defendant's negligent failure to supply him with an adequate supply of water pursuant to a valid order of the Public Service Commission, waives his right to damages for breach of contract, and institutes an action of trespass on the case for such negligent breach of duty, the right of recovery therefor is limited to the period prescribed by Code, 55-2-12, as amended.

J. W. Maxwell, Fletcher W. Mann, Beckley, for plaintiff in error.

Clay S. Crouse, David D. Ashworth, Beckley, for defendant in error.

BROWNING, President.

Plaintiff, Elisha Carter, instituted this action of trespass on the case in the Circuit Court of Raleigh County to recover damages of the defendant, George W. Willis, trading and doing business as Willis Water Works, in the amount of $10,000. The declaration alleges that defendant had obtained a certificate of convenience and necessity from the Public Service Commission to furnish water to the plaintiff and others, and, pursuant thereto, undertook to furnish water to the plaintiff in conformity with the rules and regulations of the Public Service Commission, but that, with reckless indifference and in total disregard of plaintiff's right to have and receive an adequate supply of water to satisfy his needs, defendant unlawfully, wilfully and negligently failed to render such service. The declaration further alleges that plaintiff was possessed of valuable residence property in which he resided with his wife, to whose society, assistance, companionship and services plaintiff was entitled at all times, but that, as a proximate result of the defendant's failure to perform his duties, plaintiff's wife was required to do and perform work and services in the performance of her household duties which she would not ordinarily be required to do, as a direct consequence of which his wife's health became impaired, thus depriving him of her comfort, society and services generally and requiring him to expend large sums of money for medical care. Plaintiff further alleges that, as a result of defendant's failure, he was prevented from utilizing household appliances and equipment, from raising produce and garden products, was caused to expend money for damage to household appliance, suffered physical pain and mental anguish, was caused to perform work and labor to conserve water and in obtaining water from other sources; and, that the fair market value of plaintiff's residence property has been continuously diminished over a nine year period in which defendant has failed to perform his duties. Defendant demurred to the declaration on the grounds that: (1) The declaration fails to state a cause of action; (2) the declaration sounds in contract whereas it purports to be an action of trespass on the case; (3) defendant is alleged to be a public utility and the declaration fails to allege that plaintiff has sought relief through the processes of the Public Service Commission; and (4) the declaration alleges two separate causes of action, one, for deprivation of his wife's companionship and services and, two, for his own personal suffering and damage to his property. Defendant also filed five special pleas: No. 1, that plaintiff's claim had been assigned previous to the institution of the action; No. 2, that plaintiff's assignee had previously instituted an action on the claim against the defendant which had resulted in an involuntary nonsuit; No. 3, that a proceeding was pending before the Public Service Commission at the time of the institution of this action; No. 4, that the statute of limitations bars recovery for damages accruing prior to a period of one, or at most, two years before the commencement of the action; and No. 5, res judicata. Plaintiff replied to the special pleas, to which replications defendant demurred, and interposed a plea of the general issue. The trial court overruled the demurrer to the declaration and the demurrers to the replications to the special pleas, held that none of the special pleas constituted a defense to the action, and the case proceeded to trial

Plaintiff testified, in substance, that: He had been a customer of the defendant for a number of years; he resided at a 'high point' on defendant's water line; the water supply had never been adequate to satisfy the needs of himself and his household; the water usually went off in the morning before eight o'clock, and there would not be sufficient water to wash, cook bathe, flush the commode, or for any other purpose, until ten or eleven o'clock at night; in order to obtain sufficient water for daytime purposes it was necessary to 'catch' water during the night in pails, bathtubs or other receptacles, or to carry water from residences at lower elevations; he, when working, obtained water near his place of work to supplement that available at his residence; he averaged one hour a day in obtaining sufficient water; a reasonable price for such extra labor in obtaining water would be $1 an hour; he suffered great embarrassment and humiliation when entertaining guests by reason of the lack of water; and he had made numerous complaints, all unavailing, to the defendant about the situation. Plaintiff's testimony was corroborated by several neighbors, who were familiar with plaintiff's situation, and who had experienced similar difficulties themselves. Plaintiff also introduced into evidence the Rules and Regulations of the Public Service Commission governing water companies, and two proceedings before the Public Service Commission in 1950-51 and 1957 against the defendant, for failing to furnish an adequate supply of water, the petitions on which such proceedings were based, the testimony taken thereon and the Commissioner's order in regard thereto. The defendant admitted that at certain times the water supply was inadequate, but attributed this to the wasting of water by the plaintiff and others, and introduced the testimony of three witnesses, who lived in the vicinity of the plaintiff, who stated that the water supplied by the defendant was sufficient to satisfy their needs. The defendant also introduced the testimony of an engineer, employed by the defendant in January, 1958, pursuant to an order of the Public Service Commission of March, 1957, who testified that, on January 16, 1958, at 3:30 p. m. he calculated the water pressure at plaintiff's residence to be 76 lbs. per square inch, and that the normal residence requirement is but 20 lbs. per square inch. He also testified that within 10 days after his...