Louisville Gas & Electric Co. v. Wulf

• Decision Date: 19 October 1915
• Citation: 179 S.W. 232,166 Ky. 269
• Parties: LOUISVILLE GAS & ELECTRIC CO. v. WULF. [a1]
• Court: Kentucky Court of Appeals

179 S.W. 232

166 Ky. 269

LOUISVILLE GAS & ELECTRIC CO. v. WULF. ^[a1]

Court of Appeals of Kentucky.

October 19, 1915

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.

Action by John H. Wulf against the Louisville Gas & Electric Company. Judgment for plaintiff, and defendant appeals. Reversed.

Nunn J., dissenting.

O'Doherty & Yonts, of Louisville, for appellant.

Elmer C. Underwood, Robt. G. Wulf, and O'Neal & O'Neal, all of Louisville, for appellee.

HANNAH J.

During a period of 28 years prior to May, 1913, John H. Wulf was engaged in the retail drug business, first as salesman and later as proprietor, at Preston and St. Catherine streets in Louisville. In May, 1913, he completed the construction of a modern business building at the corner of Barrett avenue and Kentucky street in Louisville, a point said to be about two miles distant from his former location, and he thereupon removed to, and embarked in, the retail drug business at this latter location, his total investment, including an equipment of handsome fixtures and a large stock of merchandise, being about $20,000. In June, 1913, he entered into an arrangement with the Louisville Gas & Electric Company, whereby patrons of that company were authorized to pay their bills for gas and electricity at Wulf's drug store, by paying to him in addition to the face of the bill, a fee of two cents, which was his compensation for making the collection. Under this arrangement, bills were made out by the company and mailed to its patrons in the district wherein Wulf was authorized to receive payment thereof, in the latter part of each month. These bills advised the customers that Wulf was the agent of the company authorized to receive payment thereof. They were presented and paid to Wulf, receipted by him, and returned to the customer. About nine days after mailing out the bills--at the expiration of the discount period--the company would send its collector to Wulf's place of business to receive the amounts so collected by him. For a number of years prior to his removal from Preston and Catherine streets, Wulf had collected for the Gas & Electric Company and companies afterwards merged into it, under an arrangement of the same nature. Wulf collected and paid over to the company the amounts due to it from its patrons in his district for the month of June, 1913, and thereafter up to and including the month of December, 1913. In the latter month bills were sent out by the company to its patrons in his district, the discount period expiring December 31, 1913. These bills were paid to him, and on January 2, 1914, the amounts so collected were, by him, paid over to the company's collector, who receipted therefor in itemized form on a book or record furnished to Wulf by the company for that purpose; the book being kept by Wulf at his store. On January 9, 1914, the company, through a misunderstanding or mistake upon the part of the clerical force in charge of delinquent collections, sent to a number of its patrons who had paid their bills for December, to Wulf, a letter which read as follows:

"According to our records, the above bill still remains unpaid. I presume that our failure to receive your remittance is simply due to an oversight and not from any disposition on your part to neglect this payment. Will you kindly let us have your check by return mail, and oblige."

To other patrons, who had previously paid their bills to Wulf, there was sent a letter which read as follows:

"According to our records, the above bill still remains unpaid. Failure to receive your remittance for the same within three days from date of this letter will be considered as a notice that the service is no longer desired, and we shall have same discontinued at that time. For your information, we wish to say that if the service is discontinued for nonpayment, a charge of $1.00 will be collected before reconnection is made."

And, later, the following letter was sent by the company to some of its patrons who had paid their bills to Wulf:

"We have not received a reply to the letter mailed to you a few days ago in reference to the above account. As this account is considerably past due, we would appreciate if you would call at this office and make settlement for same."

Asserting that the letters mentioned charged him with the offense of embezzling the money so paid to him by the...