Gardner v. Springfield Gas & Electric Company

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

135 S.W. 1023

154 Mo.App. 666

HARVEY W. GARDNER, Respondent, v. SPRINGFIELD GAS & ELECTRIC COMPANY, Appellant

Court of Appeals of Missouri, Springfield

February 6, 1911

Rehearing Denied April 7, 1911, 154 Mo.App. 666 at 681.

Appeal from Greene Circuit Court.--Hon. G. W. Goad, Special Judge.

Judgment reversed and cause remanded.

Delaney & Delaney for appellant.

(1) That mandamus judgment is conclusive only on application for an alias writ, or in compelling performance of mandate or in punishing for disobedience, see People v. Solomon, 54 Ill. 39; People v. Rice, 144 N.Y. 249; People v. Rochester, 76 N.Y. 294; 19 Ency. of Law (2 Ed.), 723; 26 Cyc. Law and Procedure, 485. (2) That the sale by relator before judgment abated the alternative writ, see State ex rel. v. Jasper Co., 93 Mo. 499; United States v Boutwell, 17 Wall 604, 21 Law Ed. 721; U. S. v Butterworth, 169 U.S. 600, 42 Law Ed. 873; Warner Stock Co. v. Smith, 165 U.S. 28, 41 Law Ed. 621; Cox v. U.S. 9 Wall. 298, 19 Law Ed. 579; Ex parte Dowe, 54 Ala. 258; State v. Railroad, 57 P. 106. (3) Either the mandamus judgment, in an independent suit, does conclude respondent on any issue involved, so far as the individual is concerned or it is conclusive on all issues litigated or which might have been litigated. Plaintiff can choose whichever position he desires. State v. Ryan, 2 Mo.App. 309, R. S. 1909, secs. 2549, 2550, 2551, 2552 and 2554; Gilbert v. Fish Co., 86 Minn. 365. (4) Notwithstanding plaintiff's purchase or lease of an engine and generator to furnish his own power at 322 South street, and notwithstanding his advertisement to the public that he was furnishing his own power independent of the defendant, but was in fact tapping our current, affords but one inference and it is the only reasonable inference in the light of all the evidence in this record, to-wit: that he was purloining current at 305 South street by means of the shunt wire. And yet, while this latter issue was gravely submitted as the only one for the solemn consideration of the jury, in the learned and exhaustive instructions of the court, nisi, said honorable court excluded from their consideration facts which irresistibly warranted such inference of knowledge. State v. Lehman, 175 Mo. 619; Franklin v. Railroad, 97 Mo.App. 473; Buckley v. Kansas City, 95 Mo.App. 188; Kenneth Co. v. Bank, 103 Mo.App. 613; State v. Schnelter, 181 Mo. 173.

Roscoe C. Patterson and White & White for respondent.

(1) No point is made in objection to the measure of damages as directed in plaintiff's instruction No. 2, but we cite authorities in support of the position taken, that plaintiff is entitled to recover the damages caused by the loss of his business as shown by the proven profits, together with the extra expense incurred in trying to save his business. As to the loss of business and profits: 13 Cyc. 57, 58, 59; Gildersleve v. Overstoltz, 90 Mo.App. 531; Popskey v. Munkwitz, 68 Wis. 322; Sheppard v. Gas Co., 15 Wis. 330; Wakeman v. Wheeler, 101 N.Y. 205; Western Union v. Austlet, 115 S.W. 624; Chapman v. Kirby, 49 Ill.App. 211. As to the expense incurred in trying to save the business: Railroad v. McGrew, 104 Mo. 282; Dietrich v. Railroad, 89 Mo.App. 36; Field on Damages, 19; Bilhimer v. Railroad, 119 S.W. 502. (2) It is claimed that on the finding of facts in the mandamus suit, the peremptory writ was improvidently ordered. If that was true it could not affect the validity or force of the judgment in this collateral proceeding. At most it was error, which cannot avail the defendant now, but must have been taken advantage of on appeal. Rosenheim v. Hartsock, 90 Mo. 365; McDonald v. Frost, 99 Mo.App. 44; 23 Cyc. 1090, 1095, 1100; Bedford v. Sykes, 168 Mo. 14.

OPINION

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 $ 1096, 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 of 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 employees 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 thirty-five dollars 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 five thousand dollars 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 six thousand dollars, for which he asks judgment."

The answer, in addition to a general denial, alleged affirmatively the execution of the contract and the organization of the defendant; that the plaintiff entered into the contract with the intent to defraud defendant, and with the fixed intent to divert and misappropriate a portion of the current necessary to the operation of his business, and that plaintiff, in furtherance of said design and fraudulent intent, installed on his premises the shunt wire, and thereby diverted a part of the current before it passed through the meter, and thereby used and consumed much electric current for which he did not pay, and the same was installed and used for the purpose of cheating and defrauding the defendant; that on or about the day of March, 1909, the plaintiff also installed a moving picture show at 322 South street, in said city, and advertised that he was generating his own power and electricity for the operation of his said plant and show at said No. 322 South street, whereas, in truth and in fact, he was using the current of the defendant at said place without its knowledge or consent, and with the intent to defraud defendant, and thereby actually did defraud the defendant; that defendant cut off the service at 305 South street, and that it did so because plaintiff was indebted to it for the current diverted and refused to pay the indebtedness or any part thereof, and because of the fraudulent intent of plaintiff at the time of entering into the contract and of his fraudulent act and conduct after the execution of said contract and relating thereto.

The defendant further answered: "That on the day of , 1909 the so-called Division No. 2 of the circuit court of Greene county, Missouri, in a proceeding in the name of the state at the relation of the plaintiff herein, rendered a pretended judgment against this...