Gardner v. Springfield Gas & Electric Co.

• Decision Date: 06 February 1911
• Citation: 154 Mo. App. 666,135 S.W. 1023
• Parties: GARDNER v. SPRINGFIELD GAS & ELECTRIC CO.
• Court: Missouri Court of Appeals

135 S.W. 1023

154 Mo. A. 666

GARDNER v. SPRINGFIELD GAS & ELECTRIC CO.

Springfield Court of Appeals. Missouri.

February 6, 1911.

On Rehearing, April 7, 1911.

1. APPEAL AND ERROR (§ 185) — GROUNDS — EXISTENCE OF COURT.

The question of the legal existence of the trial court cannot be raised by appeal.

2. MANDAMUS (§ 178) — JUDGMENT — COLLATERAL ATTACK.

A judgment directing the issuance of a peremptory writ of mandamus became final as to all the issues raised, so as not to be subject to collateral attack; and appeal therefrom having been abandoned and a writ of error to review it dismissed.

3. JUDGMENT (§ 590) — NATURE AND EXTENT OF RELIEF — ACTIONS — DAMAGES.

Under Rev. St. 1909, § 2551, providing that, upon rendition of verdict or judgment for relator in mandamus, he shall recover his damages in such manner as he might do in a civil action for a false return, and that they may be levied by execution as in other cases, one suing to compel an electric company by mandamus to furnish electricity need not ask damages in the mandamus proceedings for breach of contract to furnish the electricity, but may sue therefor in a separate action.

4. WITNESSES (§ 255) — BOOK ACCOUNTS — REFRESHING RECOLLECTION.

In an action for damage from defendant's refusal to furnish electricity for running a moving picture show, as agreed, plaintiff could, in order to refresh his recollection in testifying to the amounts received from the sale of tickets in fixing his damage, examine his ledger into which he testified he had correctly copied from day to day his receipts and expenditures.

5. EVIDENCE (§ 119) — BOOK ACCOUNTS — ADMISSIBILITY.

Books of original entry are admissible as a part of the res gestæ of the transaction they purport to record.

6. EVIDENCE (§ 354) — BOOK ACCOUNTS — ADMISSION IN EVIDENCE.

Original book entries made in the usual course of business are admissible in evidence, though they do not record transactions between the parties to the action, so that, in an action against an electric company for damage to plaintiff's moving picture business by breach of defendant's contract to furnish electricity, plaintiff's books of original entry, showing his receipts and expenditures, were admissible to prove loss of profits.

7. DAMAGES (§ 40) — LOSS OF PROFITS — REMOTENESS.

Defendant furnished plaintiff electricity for operating his moving picture show until March 30, 1909, when it turned off the current, and on June 14th a peremptory writ of mandamus was issued, requiring it to furnish electricity to plaintiff, but on June 5th, before the writ issued, plaintiff sold the business. It did not appear that, had defendant again turned on the

electricity, and plaintiff had resumed the business, instead of selling it, he would not have made the same profits as before the current was turned off. Held that, while, in an action for damages for turning off the current in violation of defendant's contract, plaintiff could recover for loss of profits between the time defendant turned off the current and when the writ was issued, it was error to submit the question of loss of profits after the writ was issued, if defendant had continued to furnish electricity; such profits being too speculative.

8. EVIDENCE (§ 84) — PRESUMPTIONS — VIOLATION OF LAW.

It cannot be presumed that one would refuse to obey a peremptory writ of mandamus directed to him.

9. ELECTRICITY (§ 11) — BREACH OF CONTRACT — BURDEN OF PROOF — DAMAGE.

In an action for loss of profits resulting from turning off electricity necessary to run plaintiff's moving picture show, defendant claiming that it shut off the service because plaintiff was diverting and stealing electricity, the burden was upon plaintiff to show the amount and value of the current diverted by him.

10. DAMAGES (§ 176) — EVIDENCE — LOSS OF PROFITS.

In an action for loss of profits resulting from the turning off of electricity necessary to run plaintiff's business, in violation of defendant's contract, plaintiff could show the receipts and expenditures for a reasonable time previous to when the current was turned off.

11. EVIDENCE (§ 93) — BURDEN OF PROOF — KNOWLEDGE OF PARTY.

A party has the burden of proof of a fact peculiarly within his knowledge.

12. TRIAL (§ 394) — FINDINGS — SEPARATE FINDINGS.

While the appellate court is not bound by the trial court's findings of fact in an equity case, the statute relating to separate findings of fact and conclusions of law applies to both legal and equitable actions.

13. JUDGMENT (§ 715) — CONCLUSIVENESS — FINDINGS OF TRIAL COURT.

In mandamus against an electric company to compel it to furnish electricity to operate plaintiff's business, the court found that plaintiff had knowingly diverted electricity without paying therefor, as alleged by defendant and denied by plaintiff, but that defendant afterwards furnished electricity with knowledge of the conversion, and for that reason issued a peremptory writ. Held, that the finding as to the diversion of electricity was conclusive of that question as against plaintiff in a subsequent action by him against defendant for damages for breach of contract in shutting off the current.

On Rehearing.

14. JUDGMENT (§ 713) — CONCLUSIVENESS.

Where the parties, the subject-matter, and the claim or demand are the same in two actions, a judgment on the merits in the first action is conclusive in the second action as to every matter which was or could have been offered therein.

Nixon, P. J., dissenting in part.

Appeal from Circuit Court, Greene County; G. W. Goad, Special Judge.

Action by Harvey W. Gardner against the Springfield Gas & Electric Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Delaney & Delaney, for appellant. White & White and Roscoe C. Patterson, for respondent.

GRAY, J.

This case is in this court on appeal by the defendant from a judgment of the circuit court of Greene county.

In May, 1907, the plaintiff was conducting a moving picture show at 305 South street, in Springfield. The defendant at said time was and now is a corporation organized under the laws of this state, and operating an electric light and power plant in said city. In May, 1907, a contract was entered into between the plaintiff and the defendant, by the terms of which the defendant agreed to furnish plaintiff light and electric current necessary to operate his said picture show. The defendant furnished the light and power under the contract, but in February, 1909, became suspicious that plaintiff was using more current than he was paying for. An investigation disclosed the fact that plaintiff was using a device known as a "shunt wire," by which the current of electricity was being diverted around the meter, so that the meter installed to measure the current of electricity did not correctly register the same. When this was discovered, the defendant instituted proceedings to collect $1,096, being the amount defendant claimed plaintiff owed it for the electric current diverted as aforesaid. The plaintiff refused to pay the bill, and defendant thereupon refused to furnish plaintiff any current. The plaintiff sued out an alternative writ of mandamus to compel defendant to furnish him the current, and upon final hearing the plaintiff was successful, and the peremptory writ issued. The defendant appealed to the St. Louis Court of Appeals, but neglected to give an appeal bond and the appeal was abandoned. Thereupon the defendant sued out a writ of error, but failed to give notice thereof, and on motion such proceeding was dismissed.

After the mandamus was made peremptory, the plaintiff instituted this suit to recover damages from the defendant for its failure to furnish electric current under the contract, alleging his damages in the following language: "Plaintiff says by reason of the premises that he has been damaged by the defendant; that on and after cutting off connection and refusal to furnish service on the _____ day of March, as aforesaid, the plaintiff endeavored to furnish himself with light and power from other sources by hiring a traction engine, employing engineers and other employés for such service, and undertook by such means to furnish himself with light at a great expense, vastly in excess of the cost of the power furnished by the defendant at its usual rates and at the rates aforesaid; that the plaintiff continued to attempt to supply service in the manner aforesaid for and after the _____ day of March, as aforesaid, until the 5th day of June, 1909, and that the expense thereby incurred in excess of what his light and power would have cost if furnished by the defendant at its usual rate was $35 per week. Plaintiff further says that although he attempted to supply himself with light and power in the manner aforesaid that such light and power were insufficient and inadequate, by reason whereof his pictures used in the conduct of his moving picture show were dim, unsatisfactory to such an extent that his custom fell off, the attendance diminished, so that he could no longer do a profitable business, and that he could not conduct the said business, except at a loss, and finally, by reason of the diminished attendance and the increase of expense he was obliged to close down and stop the said business on or about the 5th day of June, 1909; that his business when furnished with proper light and power had been extremely profitable, such that the plaintiff made as a profit in the conduct of the same about $5,000 per year over and above all expenses, and could make a like amount if said power and light had been furnished by the defendant, but by reason of the acts of the defendant, as aforesaid he incurred the expense aforesaid and his business was diminished, run down, and absolutely ruined as aforesaid at the said premises. Wherefore, by reason of the premises, the plaintiff says he is damaged by the acts of the defendant as aforesaid in the sum of $6,000, for which he asks...