Clifford v. Great Falls Gas Co.

• Citation: 216 P. 1114,68 Mont. 300
• Decision Date: 16 July 1923
• Docket Number: 5266.
• Parties: CLIFFORD v. GREAT FALLS GAS CO.
• Court: United States State Supreme Court of Montana

216 P. 1114

68 Mont. 300

CLIFFORD v. GREAT FALLS GAS CO.

No. 5266.

Supreme Court of Montana

July 16, 1923

Appeal from District Court, Cascade County; H. H. Ewing, Judge.

Action by J. F. Clifford against the Great Falls Gas Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

T. F McCue, of Great Falls, for appellant.

Maddox & Church, of Great Falls, for respondent.

STARK J.

In this action the plaintiff seeks to recover from the defendant the sum of $200 which it is alleged to have been unlawfully obtained from him by the use of force, coercion and threats. The case was tried to a jury, and at the close of the testimony on the part of the plaintiff the court sustained defendant's motion for a nonsuit, whereupon judgment was entered in its favor, from which the plaintiff has appealed. The ruling of the court on the motion for nonsuit is assigned as error.

We approach a consideration of this case bearing in mind the rule so frequently announced by this court that on a motion for nonsuit all the evidence tending to prove the plaintiff's case will be assumed to be true. Upon the trial the plaintiff testified that he was a wholesale dealer in billiard supplies at South Great Falls and occupied, as a tenant, the storeroom and basement of a building located at No. 11 Fifth street south; that the basement was used as a workshop; that in the storeroom he used a three-burner gas plate which was connected with the defendant's gas main through a gas meter located in the back corner of the basement under a stairway near a large window on the alley side; that on some occasions the gas flowing from the meter to the gas plate "froze," and instead of calling upon the defendant company to send its man down to thaw out the pipe to remedy the defect, he tapped the gas pipe leading from the outside of the building to the meter, and inserted a short piece of pipe and a device for burning gas without allowing it to pass through the meter; that the device was installed along in November or December, 1921; that he intended to take the matter up with the gas company and its officers and tell them what he had done, but had overlooked doing so; that he was willing to pay for what gas he had used and intended to do so.

On January 31, 1922, plaintiff had the gas burning through the device above described, and left his place of business for the purpose of going to the bank and post office. During his absence the building was set on fire by this burning gas, the fire department was called out, extinguished the flames, and shut off the gas. Plaintiff did not return to his place of business until after the fire had been extinguished and the gas shut off. Meantime Mr. Bertke, manager of the defendant company, had arrived upon the scene with his attorney, and when the plaintiff approached, Bertke called out to him "I have got the goods on you now. You are stealing gas. I will send you over the road to the penitentiary." Bertke, his attorney, and the plaintiff went down into the basement, and there Bertke said: "You have burned it all winter and I want $200." Plaintiff and Bertke then argued about the amount of gas which plaintiff had consumed through the device; Bertke claiming $200, based on an estimate of $50 per month, plaintiff insisting that he had not burned the gas on more than three occasions of 30 to 45 minutes each, and that he could not have used to exceed $10 worth. In the course of the conversation Bertke said to his attorney: "I want you to attach everything he has got."

Testifying further as to statements made by Bertke at the time plaintiff said:

"He was making threats and said he would send me to the penitentiary and attach everything I had and take everything I had away from me; that I had done a criminal offense."

During the course of the conversation a policeman came in, and plaintiff testified:

"I did not know but what he was making an arrest. I believed that was what he was there for at the time. * * * Bertke said he wanted $200 right there and then or he would send me to the penitentiary."

As to the effect of this conduct upon the plaintiff he said:

"In regard to my believing he would send me to the penitentiary, the way he looked, I did not know what he would do. In my state of mind he looked like an elephant to me; he scared me; that was all; I was afraid they would arrest me and prosecute me."

Under these circumstances plaintiff gave his check to the defendant company for $200, and in reference thereto testified:

"I gave the check for the purpose of avoiding prosecution or being sent to the penitentiary or jail."

The statute relied upon by defendant to establish the fact that plaintiff was guilty of a criminal offense, is section 11385, R. C. M. 1921, which provides that every person who, with intent to injure or defraud, procures, makes, or causes to be made any pipe or other conductor of gas, and connects the same with any main, service pipe, or other pipe for conducting illuminating gas in such manner as to supply illuminating gas to any burner or orifice by or at which illuminating gas is consumed, around or without passing through the meter provided for the measuring and registering the quantity consumed, or in any other manner so as to evade payment therefor, is guilty of a misdemeanor.

The consent of a party to a contract must be free. Section 7473, R. C. M. 1921. An apparent consent is not free when obtained through duress or menace. Id. § 7475. The unlawful confinement of the person of the party constitutes duress ( Id. § 7477), and the threat of such unlawful confinement constitutes menace under the provisions of section 7478.

Did the acts of the defendant, through its manager, Bertke, amount to a menace as above defined? The circumstances that defendant demanded from plaintiff the immediate payment of $200 or it would send him to the penitentiary, that thereupon the plaintiff gave the defendant his check for the sum demanded for the purpose of avoiding prosecution...