Chambers v. Spruce Lighting Co.
| Decision Date | 26 February 1918 |
| Docket Number | 3405. |
| Citation | 95 S.E. 192,81 W.Va. 714 |
| Parties | CHAMBERS ET AL. v. SPRUCE LIGHTING CO. |
| Court | West Virginia Supreme Court |
Submitted February 12, 1918.
Syllabus by the Court.
In determining on demurrer whether there is a misjoinder of counts in a declaration in trespass on the case, one of which contains averments usual in an action of assumpsit for breach of contract, the court will look to the form of the action and reconcile the count with the form adopted if it can do so without violating some well-recognized rule of pleading.
Where a declaration and one of two counts thereof conform with the action-- trespass on the case--to recover for an injury inflicted by a public service corporation, in this instance a company furnishing lights to domestic consumers, the other count will be construed also to conform with both, when to do so is not forbidden by some well-recognized and inflexible rule of pleading, and the count discloses an intention to rely for recovery on the breach of a public duty, though it does use the words "agreed," "promised," and "consideration," terms usual in declarations in assumpsit.
The true standard or test for determining the loss resulting from the impairment of a business conducted in a building, by a cause readily remediable, as by the restoration of an electric current wrongfully discontinued during eight months or less, primarily is not depreciation in rental value of the building, the occupancy thereof not otherwise being disturbed, but rather loss of profits of the business therein conducted occasioned during the interim by the interruption of the current.
A corporation assuming the performance of a public duty to domestic consumers, as the furnishing of electricity for lights, may make and enforce reasonable rules and regulations for the conduct of its business; but it cannot compel its patrons to enter into contracts releasing it from its obligations when and as it may arbitrarily elect, but must to the extent of their needs and within the limits of its facilities serve alike those accessible thereto who apply therefor and submit to such rules and regulations.
Where upon a party to an action rests the burden of proving a material fact in issue, his failure, without sufficient excuse, to produce when demanded a document in his possession which would establish the fact, if true, raises the presumption that, if introduced, it would not support his pretension.
Although actual certainty of proof cannot lawfully be exacted, a verdict based on uncertainty and inconclusiveness cannot serve as the basis of a judgment; and where plaintiffs, to show loss of custom or profits in conducting a hotel occasioned by the wrongful discontinuance of an electric current for lights, testified over objection as to what the hotel register would show if produced, but which was not produced when demanded, and its absence not satisfactorily accounted for, a new trial should be awarded on motion therefor when timely made.
Instructions considered and approved as correct and applicable, or disapproved as incorrect and inapplicable, to the facts proved.
Error to Circuit Court, Boone County.
Action by Emma J. Chambers and others against the Spruce Lighting Company. Judgment for plaintiffs, and defendant brings error. Judgment reversed, and case remanded for new trial.
Leftwich Byrnside & Shaffer, of Madison, and Price, Smith, Spilman & Clay, of Charleston, for plaintiffs in error.
J. B Hager and Chas. L. Estep, both of Madison, for defendant in error.
The Spruce Lighting Company, successor of the Spruce Fork Company, corporations chartered and organized under the law of this state, and the Boone County Coal Corporation, an affiliated company, on May 11, 1914, jointly owned a large boundary of coal lands located in Boone county, and operated it through lessees to whom defendant furnished light and power from its electric light plant completed in June, 1912 about three miles above Clothier, where plaintiffs were engaged in conducting a hotel on property owned by them. Having more current than was necessary to supply its lessees, defendant furnished part of the excess to plaintiffs and others convenient to its lines; but, desiring to avoid the duties and liabilities likely to devolve upon it in consequence of the decision in Wingrove v. Public Service Commission, 74 W.Va. 190, 81 S.E. 734, defendant communicated with a member of that commission, and, acting upon the unofficial advice given, prepared and undertook to induce plaintiffs and others not its lessees to sign contracts which purported to release it from the obligations chargeable to corporations engaged in serving the public. Plaintiffs, relying upon a pre-existing oral agreement, refused to sign another, and defendant on May 11, 1914, disconnected their property from its lines and discontinued the service, thereby compelling plaintiffs to resort to other modes of lighting their property. This they did by the use of oil lamps and other means for about six weeks, when they procured connection with the power plant and wires of the Boone Timber Company, the quality and adequacy of whose service proved to be less satisfactory than that of defendant, in consequence whereof plaintiffs claim they suffered injury through loss of the customary hotel patronage, wherefore this action. The period covered by the interruption did not exceed eight months, at the expiration of which defendant restored the service under the command of the Public Service Commission upon plaintiffs' petition.
The first error assigned for reversal of the judgment entered upon the verdict for $1,000 is the action of the court upon the demurrer to the declaration and to each of its two counts, the second of which clearly conforms with the action, trespass on the case. The first count, it is argued, is for breach of contract; and a cursory examination seems to reveal an intention to rely on such breach. The count does aver a reciprocal contract to the effect that, for the service defendant engaged to render plaintiffs were to pay $8 monthly and permit defendant to have the beneficial use of their water supply line. However, a more careful survey and analysis of the count, although it uses the words "agreed," "undertook," "promised," and "consideration," the usual characteristics of an assumpsit, seem to disclose an intention on the part of the pleader to declare in tort. For, after setting out in detail an oral agreement for the service, performance of the reciprocal undertakings mutually assumed, the payment of money, the furnishing of water facilities and the supply of electricity, the count charges failure to perform obligations legally chargeable to a corporation bound upon proper application, subject to reasonable rules and regulations, to serve the public; and it is of the nonperformance of this duty, not the breach of the contract, that the count complains. Not infrequently the averments of a declaration or of some of its counts will support assumpsit or tort, because the circumstance averred may show a tortious neglect or a wrongful breach of contract to perform a public duty. In such case courts will look to the form of action in determining the character of the pleading and harmonize the two except where to do so would violate some well-recognized rule. Ferrill v. Brewis' Adm'r, 25 Grat. (Va.) 765.
It is contended further that the court below erred in permitting the plaintiffs to read in evidence their complaint to the Public Service Commission and other portions of the proceedings had in connection with this complaint, to sustain the proposition that defendant was a public service corporation. It is unnecessary to decide this point, since the testimony discloses that electric service had been rendered for compensation to six or eight private domestic consumers, thus bringing defendant within the rule laid down in Wingrove v. Public Service Commission, supra. Whenever a corporation or natural person undertakes to render to others services which by legislative enactment or judicial decision have been declared to be of the nature of public service, such corporation or natural person thereby submits to be governed by those rules and principles which are applicable to public service companies. Though the power of eminent domain is a frequent characteristic of a public service corporation, it is not a necessary one. Wingrove v. Public Service Commission, supra. So long, therefore, as defendant continues to serve some private domestic consumers, it must submit to be governed by rules applicable to such corporations.
It is well settled that a public service corporation may make reasonable rules and regulations governing its relations with patrons, but this privilege is subject to the limitation that the regulations must not release it from any of the obligations required of such utility, unless done by special contract voluntarily entered into by the patron. There is a still further restriction that the contract must be of such nature as not to be against public policy. Wyman, Public Service Corporations, § 338.
The contract proposed by defendant was in part as follows:
"It is expressly understood by the consumer that such power furnished for lighting of said hotel is simply supplied as an accommodation to the consumer, and does not bind the producer in any way to furnish additional lights to the consumer or any other person; it being understood that the business of the producer is that of furnishing electric power for the lessees' mining operations."
It is the duty of a utility to serve all who are reasonably accessible and apply for...
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