City Cleaning Co. v. Birmingham Waterworks Co.
Citation | 204 Ala. 51,85 So. 291 |
Decision Date | 15 January 1920 |
Docket Number | 6 Div. 995 |
Parties | CITY CLEANING CO. v. BIRMINGHAM WATERWORKS CO. |
Court | Supreme Court of Alabama |
On Rehearing, February 5, 1920
Appeal from Circuit Court, Jefferson County; C.W. Ferguson, Judge.
Action by the City Cleaning Company, a partnership composed of R.R Hudson and W. Gilmore against the Birmingham Waterworks Company, for damages for cutting off their water. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.
W.T Edwards, of Birmingham, for appellants.
Percy Benners & Burr, of Birmingham, for appellee.
Where the bill of exceptions does not purport to set out all, or substantially all, of the evidence, reasonable presumptions will be indulged in favor of the ruling of the trial court. Crow v. McKown, 192 Ala. 480, 482, 68 So. 341, L.R.A.1915E, 372; Brannon v. City of Birmingham, 177 Ala. 419, 422, 59 So. 63; Sou. Hdw. & Supply Co. v. Standard Equip. Co., 165 Ala. 582, 585, 51 So. 789; McDonald v. Wood, 118 Ala. 589, 596, 24 So. 86; Gen. A.F. & L. Ins. Co. v. Shields, 9 Ala.App. 214, 220, 62 So. 400. In the condition of the record, we will not review an instruction predicating a finding upon the evidence.
The question of primary importance sought to be presented, whether the waterworks company may make and enforce discriminatory rates to the several members of a class, has been answered in the negative by our court. B.R., L. & P. Co. v. Littleton, 201 Ala. 141, 77 So. 565, 570; City of Montgomery v. Greene, 180 Ala. 322, 60 So. 900; City of Mobile v. Bienville Water Supply Co., 130 Ala. 379, 384, 30 So. 445; State ex rel. Weatherly v. Birmingham Waterworks Co., 185 Ala. 388, 64 So. 23, Ann.Cas. 1916B, 166; Birmingham Waterworks Co. v. Brown, 191 Ala. 457, 459, 67 So. 613, L.R.A.1915D, 1086; Birmingham W.W. Co. v. Hernandez, 196 Ala. 438, 71 So. 443, L.R.A.1916E, 258; Birmingham Waterworks Co. v. Truss, 135 Ala. 530, 33 So. 657.
On the trial the questions, "Do you know whether or not they have been furnishing water for the same people for $2.25 since that?" (turning the water on), and "State whether or not, after the water was turned back on, the defendant accepted $2.25 minimum charges per quarter, or the same amount you had tendered them before they cut the water off," were sought to be propounded by plaintiffs, to which defendant's objections were sustained, and exceptions reserved. The purpose was to show that the $2.25 tendered was the minimum charge per quarter to customers of the class of which was their landlord, and to which plaintiff insists they were entitled. Such evidence tended to show that the $6.75 minimum quarterly charge, demanded by defendant of the plaintiff at the time such tender was made, was discriminatory against them as tenants. The owner of the building testified he had leased the entire building to plaintiffs and that "they were the owners during the lease."
We take judicial knowledge of the ordinances of the city of Birmingham (Acts 1915, § 7, p. 294; Birch v. Ward, 200 Ala. 118, 75 So. 566; B.R.L. & P. Co. v. Kyser, 82 So. 151), and are advised of the water rates to owners or occupants of such buildings by the terms of the ordinance having application. Ordinance of City of Birmingham, 289-C, adopted February 24, 1915. The pertinent ordinance is divided into:
--and:
He indicated the course of water from the street as follows:
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