Community Natural Gas Co. v. Moss

• Decision Date: 25 November 1932
• Docket Number: No. 1020.,1020.
• Citation: Community Natural Gas Co. v. Moss, 55 S.W.2d 224 (Tex. App. 1932)
• Parties: COMMUNITY NATURAL GAS CO. v. MOSS.
• Court: Texas Court of Appeals

55 S.W.2d 224

COMMUNITY NATURAL GAS CO. v. MOSS.

No. 1020.

Court of Civil Appeals of Texas. Eastland.

November 25, 1932.

Appeal from Eastland County Court; C. L. Garrett, Judge.

Suit by Jim Moss against the Community Natural Gas Company. From judgment for plaintiff, defendant appeals.

Reversed and rendered.

Marshall Newcomb, of Dallas, and Conner & McRae, of Eastland, for appellant.

Frank Judkins, of Eastland, for appellee.

LESLIE, J.

The appellee, Moss, has not briefed this case and we are without the benefit of that aid in disposing of this appeal. The case appears to have been originally filed in the justice court for damages alleged to have been occasioned him by the defendant's act in cutting off the natural gas from his residence. In the justice court the plaintiff obtained a judgment, and the case was appealed to the county court, where a trial was had resulting in a judgment in favor of plaintiff for the sum of $195, from which this appeal is prosecuted.

On March 24, 1931, the date the gas was cut off, the Community Natural Gas Company was a public service corporation, engaged in furnishing and distributing natural gas for fuel and other purposes to the city of Eastland and the citizens thereof. This service was rendered in compliance with franchise rights and in accordance with well-defined rules and regulations generally understood and uniformly applied and enforced toward all the consumers of gas. The plaintiff Moss at such time was a regular consumer of gas under such rules and regulations, with the obligation resting upon him to pay at a defined date on each month for the gas consumed during a certain month prior thereto.

In the lower court the pleadings were oral, and in so far as material to the issues here involved, the plaintiff, among other things, alleged that, on March 24, 1931, when the gas was cut off, he (Moss) owed the gas company the sum of $3.38 for the month's gas, and that on said date the gas company was indebted to him in the sum of $10 with 6 per cent. interest thereon since January 1, 1931. That, under these circumstances, and over his protest, the gas company, notwithstanding said deposit of $10, cut off the supply of gas at his residence which was equipped for using the same, and that as the result he and his family were left without fuel for any purpose. That he was unable to secure gas elsewhere since the gas company had a monopoly on that business in the city of Eastland and that by reason of these circumstances he was damaged in the sum alleged.

In response to these pleadings and issues, the defendant gas company alleged that originally it had contracted with the plaintiff for the gas service, and had installed a meter at his residence and supplied gas to him under its rules and regulations which were known to the plaintiff at the time he contracted for the gas and gas service. That on the 5th of March, 1931, defendant presented to the plaintiff a regular monthly bill amounting to $3.38 for gas delivered to him between January 24 and February 24, 1931. That said bill was not paid when due, and that after repeatedly notifying plaintiff of that fact, the defendant finally notified the plaintiff that it would become necessary for it to discontinue its gas service to him because of his failure to pay the bill. On March 24, 1931, the defendant did discontinue its gas service to the plaintiff and removed its meter from his premises. That immediately after discontinuing the gas service the defendant deducted from the sum of money ($10) which plaintiff had placed with the defendant to secure the payment of gas bills, the sum owing it for gas furnished to the plaintiff and for which he had failed to pay. That the balance of said security deposit, together with accrued interest on the full amount of the deposit at the rate of 6 per cent. was immediately returned to the plaintiff, Moss.

The defendant further alleged that, in all the acts and conduct in discharging its duties and obligations as a public service corporation to furnish gas to the plaintiff under its rules and regulations, it had acted in a reasonable manner, and that its acts were not intended or calculated to injure, harass, or inconvenience the plaintiff.

This case does not involve any dispute (1) over the amount of the bill, (2) any defect in the meter or correctness of its registration, (3) question of overcharge by the company, or (4) waiver on its part of its right to disconnect its gas service because of plaintiff's failure to pay said bill.

In fact, the plaintiff brings and prosecutes this suit solely on the fact and theory that, since his gas bill ($3.38) did not exceed the amount of his security deposit ($10), the defendant gas company therefore had no right to discontinue its gas service to his residence, but was obligated to continue to supply gas to him until he had used a sufficient amount of the same to balance off the security deposit. This presents the sole contention, and in response thereto the appellant urges the proposition that, there being no testimony or evidence to show that the defendant had invaded plaintiff's rights or had breached a duty owing to the plaintiff in cutting off his gas, and the plaintiff's testimony having conclusively established that he had failed to pay his gas bill when due, the trial court erred in refusing to grant the defendant's motion for an instructed verdict.

The question presented by the above conflicting contentions is not a new one, and has long been settled by the decisions of this and other states. This conclusion is rested upon the following groups of authorities:

On the right of a gas company to discontinue service for nonpayment of a bill: Withers v. Ft. Worth Gas Co. (Tex. Civ. App.) 238 S. W. 324; Dallas Tel. Co. v. Oak Cliff Transfer, etc., Co. (Tex. Civ. App.) 270 S. W. 577, 579; City of Mansfield v. Humphreys Mfg. Co., 82 Ohio St. 216, 92 N. E. 233, 31 L. R. A. (N. S.) 301, 19 Ann. Cas. 842; Southwestern Tel. & Tel. Co. v. Danaher, 238 U. S. 482, 35 S. Ct. 886, 59 L. Ed. 1419, L. R. A. 1916A, 1208; Gary Heat, Light & Water Co. v. Christ, Ind. Pub. Serv. Comm., P. U. R., 1921C, 355; Kentucky Utilities Co. v. Warren Ellison Cafe, 231 Ky. 558, 21 S.W.(2d) 976 (3-7); Annapolis Public Utilities Co. v. Martin, 131 Md. 393, 102 A. 465; Thornton's Law of Oil & Gas (4th Ed.) § 623, p. 1300.

On the right of a gas company to discontinue service for nonpayment of a bill when customer's security deposit exceeds the amount of the bill, see: Texas Power & Light Co. v. Taylor (Tex. Civ. App.) 201 S. W. 205, 206; Hewsey v. Queens Borough Gas & Electric Co., 47 Misc. 375, 93 N. Y. S. 1114; 28 C. J. p. 567.

In the case of Dallas Telephone Co. v. Oak Cliff Transfer, etc., Co., supra, the telephone company disconnected its service to the appellee's place of business because the monthly telephone charge was unpaid after due demand therefor. The charge was correct and the usual one for the service. Loss of profits in business, resulting from the discontinuance of the phone service, formed the basis of the suit. In disposing of the case the court said: "As respects the appellant's other contention, the evidence does affirmatively show that the appellees were in arrears for the monthly charge for the telephone service, and that it was not paid befor the day of discontinuance of the service. The evidence is not capable of any other reasonable conclusion than that appellees actually and admittedly owed $9.50 for the monthly rental charge of March, 1922, and that, although demanded, it was not paid until July 23, 1922, after the telephone was discontinued. More extended comment on the evidence is unnecessary. A verdict to the contrary could not, in fact, be sustained. In this conclusion there was no wrongful breach of contract on appellant's part, since it had the right to discontinue the service for the nonpayment of the charges, which were just and correct."

As authority for the foregoing statement of the law, the court cited Withers v. Ft Worth Gas Company (Tex. Civ. App.) 238 S. W. 324, 325. In that case the question arose as to the right of the gas company to cut off the gas from a delinquent consumer. The court said: "The conclusion stated that the rule established by the plaintiff to cut off the supply of gas to a consumer upon his refusal to pay for gas previously furnished is a reasonable one, is supported by practically all the authorities, speaking generally. 2 Thornton on Oil & Gas, § 623, and decisions there cited; also Irvin v. Rushville Telephone Co., 161 Ind. 524, 69 N. E. 258; Shiras v....