Gilbert v. Duke Power Co.

• Decision Date: 08 March 1971
• Docket Number: No. 19185,19185
• Citation: 179 S.E.2d 720,255 S.C. 495
• Court: South Carolina Supreme Court
• Parties: Floyd A. GILBERT, Respondent, v. DUKE POWER COMPANY, Appellant.

Page 720

179 S.E.2d 720

255 S.C. 495

Floyd A. GILBERT, Respondent, v. DUKE POWER COMPANY, Appellant.

No. 19185.

Supreme Court of South Carolina.

March 8, 1971.

Steve C. Griffith, Jr., Charlotte, N.C., Charles E. McDonald, Jr., of Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, for appellant.

George F. Townes, of Abrams, Bowen & Townes, Greenville, for respondent.

MOSS, Chief Justice:

Floyd A. Gilbert, the respondent herein, instituted this action against Duke Power Company, the appellant herein, to recover actual and punitive damages. The respondent alleged that the appellant, a public utility corporation which had been furnishing him electric current at his home at 7 Elf Lane, in the City of Greenville, on or about March 28, 1969, without just cause or excuse, did unlawfully, willfully and wantonly discontinue the service; and that as a result thereof he was deprived of the use of his home, and the food which he had stored in his refrigerator and freezer was destroyed.

The appellant, while admitting that it had furnished the respondent with electric current for his home as claimed, alleged that it had discontinued such service on April 8, 1969, pursuant to due and proper notice, because of the respondent's failure to pay the monthly bill for service due on March 27, 1969.

This case came on for trial in the Greenville County Court on January 22, 1970, before The Honorable James H. Price, Jr., County Judge, and a jury, and resulted in a verdict in favor of the respondent for actual and punitive damages.

It is necessary that a short re sume of the testimony be given in order to properly pass upon the questions raised by the appellant. It is admitted that the respondent lived at 7 Elf Lane in the City of Greenville and that on and prior to March 12, 1969, the appellant had been supplying electricity to his home; that the respondent received a bill from the appellant dated March 12, 1969, showing a total due for electricity supplied of $53.30, or, if paid after March 27, 1969, of $54.60. The respondent testified that he gave his mother a sufficient amount of cash to pay the electric bill. The mother testified that she went to the office of the appellant and attempted to pay the bill as rendered but the appellant refused to accept the money so tendered and demanded an additional sum of $31.38, which it claimed that the respondent owed for electricity furnished to 'Floyd Gilbert', a resident of 106 Hardy Street, because a check issued by a tenant of Floyd L. Gilbert in payment of the tenant's service bill was returned due to insufficient funds. The mother also testified that she explained to the appellant that her son had not ever lived at 106 Hardy Street and that he was not the same 'Floyd Gilbert', and hence did not owe the $31.38 demanded.

The mother further testified that the unpaid check in the amount of $31.38 was one given by James A. Ellenburg, 106 Hardy Street. She said that a lady clerk gave her a slip of paper showing the aforesaid name and the amount of the check. Upon receipt of the information concerning the check she said that she wanted this information so that she could explain to her son why the appellant refused to accept the payment of the electric bill as rendered. She testified that after she left the office of the appellant, on March 27, 1969, she went by the home of her son and the power was already cut off.

The respondent testified that he was a truck driver and was absent from his home at the time his electricity was cut off. He said that when he returned to Greenville on or about April 5, 1969, he went to his home and the power was cut off, and the food in his deep freeze and refrigerator was spoiled. The respondent testified that he was not acquainted with James A. Ellenburg, who lived at 106 Hardy Street, and was a tenant of Floyd L. Gilbert. He, of course, testified that he was not responsible for any bill for electricity furnished to Floyd L. Gilbert or his tenant.

The appellant offered its records and the testimony of several of its employees that the respondent's electric service was discontinued on April 8, 1969, following due and proper notice, because of the respondent's failure to pay the electric bill finally due on March 27, 1969. None of the witnesses for the appellant recalled having any conversation with the mother of the respondent concerning the payment of the respondent's bill or the Ellenburg check.

During the course of the trial appellant's attorney attempted to cross-examine the respondent with regard to seven other occasions when his power had been terminated due to the nonpayment of his electric bill. Upon objection by the respondent, the trial judge refused to allow this line of cross-examination and excluded any evidence of the previous payment record of the respondent.

We have held that a consumer of electricity, furnished by a public service company, has the right to the continuance of the service, pending the adjustment of a bona fide dispute as to the amount due on his bill for service. We have also held that the public service company has the right to discontinue its service to the customer upon the nonpayment by the customer of recent and just bills for the service furnished him, and has, also, the right to refuse a further supply of electricity until those bills are paid. Arnold v. Carolina Power & Light Company, 168 S.C. 163, 167 S.E. 234.

The appellant does not question the sufficiency of the evidence to warrant a finding of actual and punitive damages but does assert that the trial judge was in error in refusing to permit the cross-examination of the respondent concerning the record of termination of electrical service on other occasions, other than the one in issue,...