Jopling v. Bluefield Waterworks & Improvement Co

CourtSupreme Court of West Virginia
Writing for the CourtPOFFENBARGER
Citation70 W.Va. 670,74 S.E. 943
PartiesJOPLING. v. BLUEFIELD WATERWORKS & IMPROVEMENT CO.
Decision Date16 April 1912

74 S.E. 943
(70 W.Va.
670)

JOPLING.
v.
BLUEFIELD WATERWORKS & IMPROVEMENT CO.

Supreme Court of Appeals of West Virginia.

April 16, 1912.


(Syllabus by the Court.)

1. Waters and Water Courses (§ 202*)— Public Water Supply—Contracts—Construction.

The rules of a waterworks company, adopted for the government of its relations with its patrons, do not become parts of a contract between it and a patron, made in terms and upon conditions not contemplated by such rules and regulations, and radically different therefrom.

[Ed. Note.—For other cases, see Waters and Water Courses, Dec. Dig. § 202.*]

2. Waters and Water Courses (§ 202*)— Public Water Supply—Contracts—Construction.

Such rules and regulations, to be applicable and effective, must enter into the contract by express or implied adoption at its inception. They cannot be ingrafted upon a contract, complete in itself and independent of them, except by the assent of both parties.

[Ed. Note.—For other cases, see Waters and Water Courses, Cent.. Dig. § 276; Dec. Dig. § 202.*]

3. Damages (§ 91*)—Exemplary Damages.

To sustain a claim for punitive damages, the wrongful act must have been done maliciously, wantonly, mischievously, or with criminal indifference to civil obligations. A wrongful act, done under a bona fide claim of right, and without malice in any form, constitutes no basis for such damages.

[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 193-201; Dec. Dig. § 91.*]

Error to Circuit Court, Mercer County.

Action by T. C. Jopling against the Bluefield Waterworks & Improvement Company. Judgment for plaintiff, and defendant brings

[74 S.E. 944]

error. Reversed, and remanded for new trial.

Sanders & Crockett, of Bluefield, for plaintiff in error.

Ross & Kahle and D. E. French, all of Bluefield, for defendant in error.

POFFENBARGER, J. On this writ of error, to a judgment against a waterworks company for damages for cutting the water off from plaintiff's storeroom, justification of the act complained of is asserted on the one side and denied on the other, in the arguments to overthrow and sustain the verdict, on the ground of sufficiency and insufficiency of the evidence, and as the basis for contentions respecting the propriety of rulings on instructions. Assuming the act to have been done without right, the motive of the defendant becomes an important inquiry in passing upon instructions respecting the award of punitive damages.

The plaintiff, occupying the ground floor of a certain building, had contracted with the defendant for a supply of water and paid the rent therefor in advance, as required by a rule of the company. Another tenant having taken up his residence on the second floor of the same building and refused to pay the water rent in accordance with the rule, the defendant cut off all the water from the building, whereupon this action was brought. The single service pipe, passing through the ground floor and on up to the second, was equipped with a cut-off, just above the spigot used by the ground floor tenant, and he gave the defendant permission to enter the room and there cut the water off from the second floor; but the appliance was such that any person could have turned the water on again without the knowledge of the company. Accordingly it refused to turn it off there and continue the supply to the lower room, but offered to continue it, if the pipe should be disconnected above the spigot. This was not done, by either the tenant or the owner, and the water was cut off agreeably to notice of intent to do so, after demand for the rental from both tenant of the ground floor and the owner of the building.

The company's rules 1, 8, and 22 are relied upon for justification of the act complained of, as being reasonably within the legal definition of the term, and as having entered into and become a part of the contract. Rule 1 required the owner of the property in every case to sign a permit, subject to the rules of the company. Rule 8 reserved right to render the bill to the owner of the property for the entire supply of water thereto, in case of occupancy by more than one person and consumption of water by all through a single tap, and to look to the owner for the entire rent for all water used in the building, and gave notice of intention not to attempt to collect rent from tenants, unless hydrants and pipes should be so ar ranged and supplied with stop keys as to give the agents of the company perfect and absolute control over the supply to each individual at all times, and then to shut off the water from all, if any refused to pay. Rule 22 required all flat rate rentals to be paid three months in advance, and all meter rentals within one month after the rendition of the service, and reserved the right to cut off the...

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30 practice notes
  • CSX Transp., Inc. v. Smith, No. 11–0694.
    • United States
    • Supreme Court of West Virginia
    • June 7, 2012
    ...Point 1, O'Brien v. Snodgrass, 123 W.Va. 483, 16 S.E.2d 621 (1941).”); Syl. pt. 3, Jopling v. Bluefield Water Works & Improvement Co., 70 W.Va. 670, 74 S.E. 943 (1912) (“To sustain a claim for punitive damages, the wrongful act must have been done maliciously, wantonly, mischievously, or wi......
  • Davis v. Celotex Corp., No. 20651
    • United States
    • Supreme Court of West Virginia
    • July 21, 1992
    ...and without malice in any form, constitutes no basis for such damages.' Syl. pt. 3, Jopling v. Bluefield Water Works & Improvement Co., 70 W.Va. 670, 74 S.E. 943 See also Jarvis v. Modern Woodmen of Am., 185 W.Va. 305, 406 S.E.2d 736 (1991); C.W. Dev., Inc. v. Structures, Inc., 185 W.Va. 46......
  • Perrine v. E.I. Du Pont De Nemours And Co., No. 34333
    • United States
    • Supreme Court of West Virginia
    • March 26, 2010
    ...Inc., 224 W.Va. 160, 190, 680 S.E.2d 791, 821 (2009) (quoting Syl. pt. 3, in part, Jopling v. Bluefield Water Works & Improvement Co., 70 W.Va. 670, 74 S.E. 943 (1912)). Accord Syl. pt. 1, O'Brien v. Snodgrass, 123 W.Va. 483, 16 S.E.2d 621 (1941) (“Punitive or exemplary damages are such as,......
  • Peters v. Rivers Edge Min., Inc., No. 34272.
    • United States
    • Supreme Court of West Virginia
    • June 4, 2009
    ...or with criminal indifference to civil obligations." Syl. pt. 3, in part, Jopling v. Bluefield Water Works & Improvement Co., 70 W.Va. 670, 74 S.E. 943 (1912). Moreover, Rivers Edge asserts that punitive damages are not automatically available in a retaliatory discharge case; instead, "ther......
  • Request a trial to view additional results
30 cases
  • CSX Transp., Inc. v. Smith, No. 11–0694.
    • United States
    • Supreme Court of West Virginia
    • June 7, 2012
    ...Point 1, O'Brien v. Snodgrass, 123 W.Va. 483, 16 S.E.2d 621 (1941).”); Syl. pt. 3, Jopling v. Bluefield Water Works & Improvement Co., 70 W.Va. 670, 74 S.E. 943 (1912) (“To sustain a claim for punitive damages, the wrongful act must have been done maliciously, wantonly, mischievously, or wi......
  • Davis v. Celotex Corp., No. 20651
    • United States
    • Supreme Court of West Virginia
    • July 21, 1992
    ...and without malice in any form, constitutes no basis for such damages.' Syl. pt. 3, Jopling v. Bluefield Water Works & Improvement Co., 70 W.Va. 670, 74 S.E. 943 See also Jarvis v. Modern Woodmen of Am., 185 W.Va. 305, 406 S.E.2d 736 (1991); C.W. Dev., Inc. v. Structures, Inc., 185 W.Va. 46......
  • Perrine v. E.I. Du Pont De Nemours And Co., No. 34333
    • United States
    • Supreme Court of West Virginia
    • March 26, 2010
    ...Inc., 224 W.Va. 160, 190, 680 S.E.2d 791, 821 (2009) (quoting Syl. pt. 3, in part, Jopling v. Bluefield Water Works & Improvement Co., 70 W.Va. 670, 74 S.E. 943 (1912)). Accord Syl. pt. 1, O'Brien v. Snodgrass, 123 W.Va. 483, 16 S.E.2d 621 (1941) (“Punitive or exemplary damages are such as,......
  • Peters v. Rivers Edge Min., Inc., No. 34272.
    • United States
    • Supreme Court of West Virginia
    • June 4, 2009
    ...or with criminal indifference to civil obligations." Syl. pt. 3, in part, Jopling v. Bluefield Water Works & Improvement Co., 70 W.Va. 670, 74 S.E. 943 (1912). Moreover, Rivers Edge asserts that punitive damages are not automatically available in a retaliatory discharge case; instead, "ther......
  • Request a trial to view additional results

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