Cospelich v. Mississippi Power Co

• Decision Date: 31 October 1932
• Docket Number: 30202
• Citation: 164 Miss. 88,144 So. 38
• Court: Mississippi Supreme Court
• Parties: COSPELICH v. MISSISSIPPI POWER CO

144 So. 38

164 Miss. 88

COSPELICH v. MISSISSIPPI POWER CO

No. 30202

Supreme Court of Mississippi

October 31, 1932

Division A

1 ELECTRICITY.

Reasonableness of electric company's rule requiring deposit to be maintained by customers during continuance of service held law question for court.

2 ELECTRICITY.

Electric company's rule requiring deposit to be maintained by customers during continuance of service held reasonable.

3 ELECTRICITY. Electricity customer held not entitled to have unpaid bills paid from sum deposited to guarantee payment of unpaid bills and have continuance of service until deposit was exhausted.

Contract between electric company and customer provided in substance that amount was deposited as security for payment of all bills for electricity, gas, or for any appliances used in connection with the same, or for any material of any kind purchased from or services rendered by electric company, and that, on continuance of service and surrender of receipts, amount of deposit less amount due electric company deductible therefrom would be returned to depositor.,

HON. W. A. WHITE, Judge.

APPEAL from circuit court of Harrison county, HON. W. A. WHITE, Judge.

Action by Morris Cospelich against the Mississippi Power Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

William Estopinal, of Gulfport, for appellant.

Whether or not any rule made by the Mississippi Power Company for the government of its affairs is a reasonable rule or not, when that rule is involved in any matter or controversy existing between the Mississippi Power Company and its customers the right to determine whether or not this is a reasonable rule belong entirely to a trial jury and not to the trial judge.

Mississippi Power Company v. Byrd, 133 So. 193-194.

Is it fair, to bar the customer from recovery when he has suffered a wrong at the hands of a power company simply because the power company had an undisclosed rule known to themselves only, that compelled the customer to do something that he did not know he was required to do; namely, to leave his deposit intact in the hands of the Mississippi Power Company throughout the period of time that he is using the lights or the power of the said Mississippi Power Company in spite of the fact that he, the customer, is given a receipt or a contract in writing, clearly stating that the deposit is made for the purpose of guaranteeing the payment to the power company of any bill that might become due and remain unpaid made by the customer or for any materials or supplies that the customer may have purchased from the Power Company and not pay for the same. If this contract means anything, it means exactly what it says and relying on that very contract the appellant herein made every reasonable human effort to have the Mississippi Power Company pay to themselves out of the money belonging to this appellant the amount due the appellee by the appellant, and that if the appellant could not restore the deposit to the amount required, prior to the time that the balance due the appellant on his deposit had been used up for additional light and power served him, then in such event when the said balance had been used up, the appellee to cut out the lights of the appellant.

Eaton & Eaton, of Gulfport, and Baskin, Wilbourn & Miller, of Meridian, for appellee.

The authorities overwhelmingly show that a public service company has the right to discontinue service for nonpayment of a delinquent bill, notwithstanding that the customer has an amount on deposit in excess of the amount of the bill in arrears, as reasonable rules of a public service company are necessary to protect its plant and keep up its efficiency.

Central Louisiana Power Company v. Thomas, 145 Miss. 352, 110 So. 673.

It is uniformly held that a regulation requiring payment in advance or a fair deposit to secure payment is reasonable, and to protect themselves against loss telephone companies can demand payment in advance.

Southern Telephone Company v. Danaker, 238 U.S. 489, 59 L.Ed. 1419.

A public service company has the right to cut out a telephone patron in arrears on a monthly bill, notwithstanding the fact that the customer had on deposit an amount exceeding the sum due on the bill.

Irvin v. Rushville Coop. Teleph. Co., 161 Ind. 524, 69 N.E. 258.

We have not been able to find any case in which it has been held that a deposit made to secure the performance of a contract will prevent a default in the payments under the contract. On the contrary, all the decisions on this point hold that failure to pay the amounts as they fall due under the original contract breaches the contract.

Georgia Ry. & Power Company v. Peck, 88 S.E. 33.

There is nothing in the contract or application for service signed by plaintiff and exhibited in his pleadings which require the defendant to apply such deposit upon any unpaid bill or bills by the plaintiff-consumer, but the reasons for the deposit would prevent such application in a case where there was a continuance of service.

Arnold v. Alabama Power Company, 206 Ala. 506, 90 So, 909; Georgia Railway & Power Company v. Peck, 88 S.E. 33; Ponds on Public Utilities, p 308; Latshaw v. Board of Light & Water Commissioners of Duluth, 117 N.W. 827; Texas Power & Light Co. v. Taylor, 201 S.W. 205; Garrett v. Monroe, 40 L.R.A. (N.S.) 763.

OPINION

McGowen, J.

About April 11, 1930, Cospelich, the appellant, made application for service of electrical energy to Mississippi Power Company, for a filling station operated by him, which contained the following provision: "The undersigned requests Mississippi Power Company to furnish subject to its rates and service regulations in effect from time to time, the service and facilities named herein as may be requested from time to time and agrees to pay all service and other charges in accordance with said rates and service regulations. Upon the beginning of the service applied for herein, or which may be applied for hereafter, this application becomes a contract for a term of one year and thereafter until terminated by either party upon thirty days' written notice."

At or about the same date, the power company issued to the appellant a receipt for ten dollars, required by the company as a deposit from its customers, containing the following provisions:

"This is to certify that the above amount has been deposited with Mississippi Power Company as security for the payment of all bills for electricity, gas or for any appliances used in connection with same, or for any material of any kind purchased from or services rendered by said company.

"Upon discontinuance of service and surrender of this receipt, the amount of this deposit less any amounts due said company deductible therefrom will be returned to depositor. The company will pay interest on this deposit less any deductions at the rate of eight per cent per annum from date hereof, payable when deposit is returned or annually as earned upon request of depositor, provided depositor has been served by the company longer than six months. Interest ceases when service is discontinued. Conditions on reverse side hereof are a part of this receipt.

"MISSISSIPPI POWER COMPANY,

"By WALLACE CHAPMAN,

"L. M. L. A. Cashier, C. A.

"I accept the above conditions.

"--Depositor."

And on the reverse side the following: "The Company will not connect its service with premises described in depositor's application unless depositor has complied with the state and municipal regulations on the class of service applied for and with the rules and regulations of the Company, . . . nor until all bills for service rendered to or materials purchased by depositor previously at any time and at any place have been paid in full. In event depositor fails to comply with such conditions this deposit may be returned to depositor and the deposit is...