Milner v. Louisiana Public Utilities

• Decision Date: 14 April 1941
• Docket Number: 2232.
• Citation: 1 So.2d 443
• Court: Court of Appeal of Louisiana — District of US
• Parties: MILNER v. LOUISIANA PUBLIC UTILITIES, Inc.

1 So.2d 443

MILNER v. LOUISIANA PUBLIC UTILITIES, Inc.

No. 2232.

Court of Appeals of Louisiana, First Circuit

April 14, 1941

P.M Milner, of Lacombe, in pro per.

Debaillon Bailey & Mouton, of Lafayette, and J. Monroe Simmons, of Covington, for appellee.

DORE, Judge.

Plaintiff brought this suit to recover damages occasioned by the cutting off by defendant's employees of the electric current at plaintiff's home at Lacombe, in St. Tammany Parish.

Plaintiff, a practicing attorney, has his residence at Lacombe, St Tammany Parish, but his office is situated in the City of New Orleans, in the Parish of Orleans. The defendant is a public service corporation supplying electricity to those residing in the rural district of St. Tammany Parish, with an office in the Town of Slidell, in said Parish, and had been supplying electricity to the residence of plaintiff for some years prior to the alleged cutting off of the electric current.

It appears from the evidence that defendant, prior to the cutting off of the electric current, had submitted to plaintiff monthly bills for the use of electricity, upon each of which bills it was declared that the due date was on or before the 10th of the current month.

It appears further from the evidence that defendant submitted to plaintiff, on or about April 1, 1935, a statement or card showing a charge of $19.43 for electricity used by the plaintiff from 2/15/35 to 3/15/35 plus a merchandise account of $5.60, with the usual notation that the same was due on or before the 10th of the month; that this bill became delinquent, and that thereafter, between April 10, and April 15, 1935, a delinquent notice was sent to plaintiff informing him that this bill had not been paid by the 10th, and advising him that unless payment thereof was made by April 20, 1935, his services would be disconnected and a payment of $1 would be required as a charge for reconnection.

On April 26 1935, the amount due by plaintiff not having been paid defendant's employees, without further notice to the plaintiff, proceeded to the residence of plaintiff and cut off the service. Plaintiff, being in New Orleans, was advised at about 9:30 in the morning that his two refrigerators were not working. Whereupon, he advised defendant's agent at Slidell to that effect. Defendant's agent, not knowing of the disconnection of the service, informed plaintiff that he would immediately investigate the same, and at about 3:30 of that evening informed plaintiff that his service had been disconnected for the nonpayment of the bill, and upon the payment thereof together with the $1 charge for reconnecting, the service would be reinstated. Plaintiff agreed to send defendant a check in payment of his bill in full, including the $1 charge for reconnection. The services were reconnected that same day.

Plaintiff filed this suit on May 4, 1935, claiming $1,000 damages for trespass on his premises by the employees of defendant and for humiliation and embarrassment. He also prayed for the recovery of the $1 paid for the reconnection of his services of electricity; he contends that there was no contractual relationship between the company and himself wherein he was supposed to pay his bills at any definite set date or time during the month the bill became due, and that in the event such a contractual relationship was found to exist, then and in that event the defendant had waived such provision by accepting, without objection, the payment of his bills for several previous months long after being due.

The defendant offered as a defense that plaintiff had contracted for its electrical service, and that the contract stipulated that plaintiff was to pay his bill as it became due at defendant's office within ten days from rendition of the bill, and in the event of nonpayment defendant's employees were granted the right of entry on plaintiff's premises for the purpose of disconnecting the service, and that a charge of $1 would be assessed for reconnection; that it had acted in pursuance thereof.

There was judgment below for the plaintiff in the sum of $10, as damages, plus the $1 paid for the reconnection. This judgment was rendered on December 18, 1939, and on December 14, 1940, plaintiff obtained and perfected a devolutive appeal from only that part of the judgment dealing with the amount of damages allowed. The defendant has answered the appeal, asking that the judgment of the lower court be reversed; and, in the alternative, if it be held to be liable, then and in that event, that the judgment be affirmed as being ample under the circumstances of the case.

In this court, plaintiff contends that the only question at issue is the quantum of damages in that: (1) Defendant had acquiesced in the judgment on December 28, 1939, by sending plaintiff a check for $11 in payment of...