Jopling v. Works
| Decision Date | 16 April 1912 |
| Court | West Virginia Supreme Court |
| Parties | Jopling v. Bluefield Water Works & Improvement Co. |
1. Waters aa'd Watee Courses Public Water Supply Contracts Construction.
The rules of a water works 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 con- ditions not contemplated by such rules and regulations, and radically different therefrom, (p. 672).
2. Same.
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 engrafted upon a contract, complete in itself and independent of them, except by the assent of both parties, (p. 673).
3. Damages 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, (p. 673).
Error to Circuit Court, Mercer County.
Action by T. C, Jopling against the Bluefield Waterworks & Improvement Company. Judgment for plaintiff, and defendant brings error.
R ev ersed. Remanded.
Sanders & Crockett, for plaintiff in error.
Ross & Kahle, and D. E. French, for defendant in error.
On this writ of error, to a judgment against a water works company for damages for cutting the water off from plaintiff's store room, 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 arranged 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 water for non-compliance.
As the contract here involved was made with a single tenant and not with the owner of the building, as contemplated by the rules, the position assumed for the plaintiff in error is untenable. There was no contract with the owner, no written contract with anybody, nor an agreement by any person to pay for water fur- nished to persons other than himself. The plaintiff may have had knowledge of the company's rules. Conceding this, he knew equally well the company could make a special contract with him. His money had been accepted and the water furnished. If the agent who made the special contract ha I no authority to make it, restoration of the money or a portion of it equal to the unearned rental was a condition precedent to release from its obligation, and it was neither refunded nor tendered. To say these rules became a part of the contract under the circumstances, would permit them to be used for a purpose wholly different from that for which they were made and promulgated. They require the owner to obtain a permit and agree to be liable for all rentals accruing against his tenants. The owner might be willing thus to bind himself for some tenants, but not for others, and he has the right to assume, in case water is furnished to his tenant, without such an agreement, that the company looks to the tenant for the rental. To begin a supply of water, under such circumstances, and then attempt to apply and enforce the rule, works surprise, injustice and hardship. The rules do not contemplate action of that sort. If they are so burdensome upon property owners, or so inconvenient to the company, as to...
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