Elwell v. Atlanta Gas Light Co

• Decision Date: 16 September 1935
• Docket Number: No. 24278.,24278.
• Parties: ELWELL. v. ATLANTA GAS LIGHT CO.
• Court: Georgia Court of Appeals

51 Ga.App. 919

181 S.E. 599

ELWELL.

v.ATLANTA GAS LIGHT CO.

No. 24278.

Court of Appeals of Georgia,

Division No. 1.

Sept. 16, 1935.

Rehearing Denied Sept. 28, 1935.

Syllabus by the Court.

1. An action ex delicto may be based upon a duty imposed by law in consequence of a contractual relation between the parties. In such a case the action is in no sense based upon the contract, especially where the contract is not set forth in the petition, none of its expressed provisions are therein recited and there is no allegation that any of the expressed provisions were violated. The declaration generally recites the contract as a part of the history of the transaction, merely to give rise to the duty imposed by law in view of the relationship of the parties created by the contract. Considering the petition in its entirety and attempting to ascertain the intention of the pleader, the facts as set forth constitute a cause of action ex delicto.

2. The defendant is a public service corporation. As such it is bound to furnish gas to all members of the municipality in which it operates, who will comply with its reasonable rules and regulations.

3. "That the company may enforce a regulation exacting payment in advance in reasonable amounts or requiring the deposit of security is fully settled by the authorities." The reason for the legality of such a rule is that "the company is bound to furnish gas on application and it is but just that it be not compelled to supply unknown and irresponsible persons therewith without assurance in some form that it will receive compensation."

4. If this increase in deposit of $25 was bona fide requested in accordance with a reasonable rule and regulation to exact payment, or as security in advance in a reasonable amount for the further consumption of gas, under the present contract, the defendant would not be violating its duty; and the exercise of this authorized right, whether done maliciously or not, would not make the defendant liable.

5. On the other hand, if the additional deposit of $25 was required, not in accordance with a reasonable rule and regulation, but arbitrarily in order to coerce the plaintiff into paying the old bill arising under a separate contract at a former residence (that is, if the defendant, when it received the $25 additional advance deposit was intending to credit it on the old account against the wishes of the plaintiff), the defendant would be violating its duty to the plaintiff.

6. If the petition sets forth the wrong measure of damages, this may be reached by a proper special demurrer, but the wrong measure of damages does not subject the petition to a general demurrer. Atlanta Plow Co. v. Bennett, 49 Ga. App. 672 (6), 176 S. E. 822; Koch Co. v. Adair, 49 Ga. App. 824 (3), 176 S. E. 680. If the allegations of the petition entitled the plaintiff to recover only nominal damages, the action would not be subject to dismissal. Young v. W. & A. R., 39 Ga. App. 761 (2), 148 S. E. 414.

BROYLES, C. J., dissenting.

Error from City Court of Atlanta; Hugh M. Dorsey, Judge.

Petition by J. H. Elwell against the At-lanta Gas Light Company. To review a judgment dismissing the petition on general demurrer, plaintiff brings error.

Reversed.

Feagin & Feagin, of Macon, and Love B. Harrell, of Atlanta, for plaintiff in error.

Alston, Alston, Foster & Moise and Henry J. Miller, all of Atlanta, for defendant in error.

MacINTYRE, Judge.

1. The judge erred in dismissing the petition on general demurrer. In his opinion on rendering that judgment, he construed the action as one ex contractu; and if this construction be true, in view of the fact that the petition did not state damages appropriate to such action, the judgment of dismissal was proper. However, with due respect to the opinion of the trial judge, we, in attempting to reach a conclusion on the exceptions brought to this court, have been unable to agree to this construction. The petition alleges that the defendant was a public service corporation, the custom appertaining thereto, its duties as such, and damages sustained by the plaintiff by reason of the violation of said duties. An action ex delicto, as in this case, may be based upon a duty imposed by law in consequence of a contractual relation between the parties. In such a case the action is in no sense based upon the contract, especially where the contract is not set forth in the petition, none of its expressed provisions are recited, and there is no allegation that any of the expressed provisions were violated. The declaration generally recites the contract, as a part of the history of the transaction, merely to give rise to the duty imposed by law in view of the relationship of the parties created by the contract. Considering the petition in its entirety and attempting to ascertain the intention of the pleader, we think the facts as set forth in the petition constitute a cause of action ex delicto. At least it can be so construed; and the court not having passed on any special demurrer calling upon the plaintiff to indicate with specific certainty the cause of action on which he decided to proceed, it is to be presumed the pleader intended to effectuate his best interest. Some of the allegations of the petition would be superfluous in an action founded on a contract. The authority upon this general subject has been recently correlated in the opinion in the case of Lawrence v. Atlanta Gas-Light Co., 49 Ga. App. 444, 176 S. E. 75, and we do not feel that it is necessary to discuss them again at a great length. Counsel for the defendant mainly rely, in their contention that the action is ex contractu, upon the case of Milledgeville Water Co. v. Fowler, 129 Ga. 111, 58 S. E. 643, 644. We think the allegations in the case at bar distinguish it from the case cited. There it was said: "So far as it appears from the record, the defendant company was not in the exercise of any franchise granted by the municipality, nor was it in any way obligated to serve the public at large, nor the plaintiff as a member thereof." In the present case, as already pointed out, the petition alleges the defendant is a public service corporation, which we think sufficient, as against general demurrer to show its relationship to the general public as distinguished from an ordinary private corporation as the Milledgeville Water Company appeared to be.

2. The petition alleges that plaintiff resided, some time before the tort complained of, at No. 383 Seventh Street Northeast, Atlanta, Ga., and that at that place petitioner became indebted to the defendant for gas furnished in the sum of $25.-75; that subsequently thereto he moved and became a resident at No. 663 Boulevard Northeast, Apartment No. 3, Atlanta, Ga.; and that after ...