Ginnings v. Meridian Water Works Co.

• Citation: 56 So. 450,100 Miss. 507
• Decision Date: 20 November 1911
• Docket Number: 15184
• Court: United States State Supreme Court of Mississippi
• Parties: L. L. GINNINGS v. MERIDIAN WATER WORKS CO. ET AL

56 So. 450

100 Miss. 507

L. L. GINNINGS v. MERIDIAN WATER WORKS CO. ET AL

No. 15184

Supreme Court of Mississippi

November 20, 1911

October, 1911

APPEAL from the circuit court of Lauderdale county.

Reversed and remanded.

HON JNO. L. BUCKLEY, Judge.

Suit by L. L. Ginnings against the Meridian Water Works Company. From a judgment for defendants, plaintiff appeals.

The facts are fully stated in the opinion of the court.

F. V Brahan, for appellant.

The idea of this case, under the well-settled rule of law, being one for peremptory instruction, I submit is a burlesque on the peremptory instruction practice, and is absurd and ridiculous. The rule, as I understand it, governing peremptory instructions, is that where there is no conflict in the evidence, or where the evidence is of no value, and the court would not permit a verdict to rest on it, in the language of this court, "A failure to give the instruction is an abdication of judiciary authority and licenses the jury to trample underfoot the well-settled principles of law."

Without detailing the defendant's testimony, suffice it to say he testified to every material allegation of his declaration and Barron corroborated him in every material fact, and both testified that there was no conspiracy between them to wrong the defendant, and plaintiff testified the contract was made in good faith, and that be was damaged in being forced for water, to move his location.

The case of Burke v. Water Valley, 87 Miss. 732, "is on all fours" with this case, and it is useless to say more. See, also, on this point volumes 29 and 30, L. R. A. (Old Series), pages 376 and 447, respectively.

On the point of damages, see 78 Miss. 873, and 89 Miss. 252 (Hobart's case), and Vicksburg Water Works Company v. Dutton, 53 So. 537. Wherefore, I ask that the case be reversed and remanded.

Williamson & Gilbert, for appellee.

The facts of this case are wholly unlike the facts in the cases of Burke v. Water, Valley and Vicksburg Water works Company v. Dutton, or the other cases cited by counsel in his brief

In the Burke case the city refused to give water service to one tenant in exclusive occupancy for the reason that a former tenant, who was in exclusive occupancy of the premises, was in arrears for water charges. The court decided that in such a case a rule was unreasonble that authorized the discontinuance of water service.

In the Vicksburg case, the city negligently discontinued water service and disconnected the complainant's residence from its mains.

In the present case the undisputed facts are these: That The Barron Shoe Hospital, operated by one Barron, a witness for appellant, occupied a certain storeroom on Fifth street, the same being a small room, and had in the room certain machinery and employed two or three workmen; that the Barron Shoe Hospital was in arrears for about ten dollars for water rent, which it refused to pay; that some six weeks before the water service was discontinued on account of due and unpaid rental. The appellant had some sort of arrangement with Mr. Barron, by which he was to occupy about fifteen feet square in the southwest corner of the building, the same being the corner most remote from Fifth street; that at the time the water service was discontinued the appellant was occupying that certain space and engaged in the pressing business, having no partition or barrier of any kind to designate or distinguish his part of the room from that used by the Barron Shoe Hospital, except a sort of "imaginary line," as the appellant himself styled it in his testimony, or a pressing table, which rested against the west wall of the building and extended towards the east wall of the building to about two-thirds of the width of the room, leaving the remaining part of the room open and the rear thereof easily accessible to the owner and employees of the Barron Shoe Hospital. It is also shown that the hydrant was located in the south-east corner of the room and that the water closet was in the rear on the outside of the room. According to the testimony of Mr. Barron, one of appellant's witnesses, appellant had no definite term of lease on the property; that they had no understanding whatever about the term of lease and the agreement was not reduced to writing. Whatever agreement they might have had, Mr. Barron breached his agreement in that he refused to furnish water either for appellant's use or his own use, intending all the while that if water service should be given to appellant, that he and his employees would use the water and thereby get the benefit of water services for himself, his employees and that necessary to be used in his business without being liable or responsible to any person.

It is further shown by undisputed testimony that it was the rule of the waterworks management to charge a flat rental of fifty cents for each distinct family or person using water from the same hydrant, besides charging for all water measured by the meter; that rule was explained in detail by Mr. Wilcox, manager of the waterworks business and witness for appellee. The rule of the waterworks management was also introduced, showing that the water service would be discontinued where it was used by other than those who contracted for the service.

The question in this case is whether or not the waterworks management was acting within...