Mississippi Power Co. v. Byrd

• Decision Date: 06 April 1931
• Docket Number: 29340
• Citation: 160 Miss. 71,133 So. 193
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI POWER CO. v. BYRD

133 So. 193

160 Miss. 71

MISSISSIPPI POWER CO. v. BYRD

No. 29340

Supreme Court of Mississippi

April 6, 1931

Division B

1 ELECTRICITY. Rules and regulations of public service corporation requiring five days cut-out notice on customer's failure to pay electricity bill held reasonable and binding.

Rules and regulations of public service corporation supplying electric current provided that, before customer could be deprived of current, corporation was required to give him five-day cut-out notice in writing to effect that, if he failed to pay arrears before expiration of five days after such notice, corporation should have right to deprive him of electric current.

2 ELECTRICITY.

Whether public service corporation gave required cut-out notice on customer's failure to pay electricity bill before current was withdrawn held question for jury.

3 ELECTRICITY. Existence of arrangements, if any, between customer and public service corporation regarding payment of electricity bill, held question for jury under conflicting evidence.

Public service corporation was engaged in supplying electric current to customers. On customer's failure to pay bill, current was cut out, whereupon customer brought action for damages, asserting agreement and understanding between public service corporation and customer and named bank that corporation should present customer's monthly bill to the bank, and that bill when so presented should be treated by bank as draft drawn by customer and honored against any funds to his credit in the bank.

4. DAMAGES.

Mere negligence not characterized by wantonness or willful wrong will not warrant punitive damages.

5. DAMAGES.

Public service corporation, not having acted willfully or wantonly in cutting off electricity on nonpayment of bill, would not be liable for punitive damages.

6. DAMAGES.

Damages for mental suffering cannot be recovered, where caused by simple negligence without bodily injury, malice, insult, or fraud.

HON. J. Q. LANGSTON, Judge.

APPEAL from circuit court of Pearl River county, HON. J. Q. LANGSTON, Judge.

Action by Will T. Byrd against the Mississippi Power Company. Judgment for the plaintiff, and the defendant appeals. Reversed, and cause remanded for trial of the issue of damages alone, and affirmed as to issue of liability.

Reversed and remanded.

Baskin, Wilbourn & Miller, of Meridian, for appellant.

The act of a lighting company in discontinuing service without notice upon user's default for past months service, was proper, where the contract provided for discontinuance on default, and it was immaterial that the amount due was not in excess of the amount deposited by the user to secure faithful performance of the contract.

Texas Power & Light Company v. Taylor, 201 S.W. 205; State ex rel. Latshaw v. Board of Water & Light Commissioners, 117 N.W. 827; Commonwealth v. Philadelphia, 19 A. 136; Girard Life Ins. Co. v. Philadelphia, 88 Penn. 398; Tacoma Hotel Co. v. Tacoma etc. Co., 28 P. 516, 14 L. R. A. 669, 28 Am. St. Rep. 35; Southwestern Tel. & Tel. Co. v. Danaher, 238 U.S. 483, 59 L.Ed. 1421; Nelson v. Mobile Electric Co., 96 So. 713; Central Louisiana Power Co. v. Thomas, 145 Miss. 352, 111 So. 142.

It is the established rule in Mississippi that punitive damages are not allowed in the absence of wilful, wanton or gross negligence or where there is no indication of physical injury.

Grenada Bank v. Lester, 126 Miss. 442, 89 So. 2; Western Union Tele. Co. v. Koonce, 112 Miss. 173, 72 So. 893; R. R. Co. v. Machine Co., 71 Miss. 663, 16 So. 252; R. R. Co. v. Gill, 66 Miss. 39, 5 So. 393; Tele. Co. v. Rogers, 68 Miss. 748, 9 So. 823; Duncan v. Tele. Co., 93 Miss. 500, 47 So. 552; Telegraph Co. v. Ragsdale, 71 So. 818.

Mere annoyance, mental anguish or worry, disconnected from physical suffering, does not constitute element of actual damages.

Gulf & S. I. R. Co. v. Beard, 129 Miss. 827, 93 So. 357; American Ry. Express Co. v. Bailey, 142 Miss. 622, 107 So. 761; Tele. Co. v. Ragsdale, 71 So. 818; Tele. Co. v. Rogers, 68 Miss. 748, 9 So. 823; Mobile & Ohio R. R. Co. v. Flanagan, 141 Miss. 7, 105 So. 749; Bonelli v. Branciere, 127 Miss. 556, 90 So. 245.

J. B. Mayfield, of Poplarville, for appellee.

Appellee showed a legal duty owing unto him by appellant and a violation thereof resulting in damage and if there was any doubt it became a question for the jury and it was proper for the court to refuse to direct a verdict for the appellant.

It was not necessary for the plaintiff to itemize every element of his damage, enumerated therein, inconvenience, annoyance, mental pain, pecuniary loss, discomfort, and interference with the comfort of the plaintiff and his family

Tele. etc. Co. v. Hobart, 89 Miss. 252, 42 So. 349, 119 Am. St. Rep. 702.

The appellee proved such willful, wanton and gross negligence to the degree necessary to recover punitive or exemplary damage.

American Railway Express Co. v. Bailey, 142 Miss. 622, 107 So. 761.

Argued orally by Barney Eaton, Jr., and R. E. Wilbourn, for appellant, and by J. E. Mayfield, for appellee.

OPINION

Anderson, J.,

Appellee brought this action against appellant in the circuit court of Pearl River county for damages which he claimed to have suffered because appellant illegally deprived him of the electric current which it had furnished him to light his dwelling. Appellee sued for both actual and punitive damages. The trial resulted in a judgment and verdict for appellee in the sum of five hundred dollars; and from that judgment appellant prosecutes this appeal.

Appellant is a public service corporation, engaged in furnishing to the public in the town of Poplarville, and the vicinity thereof, electric current for lighting their homes and places of business. Appellee lived near the town of Poplarville, in the country. He was a customer of appellant; the latter furnishing the current to light appellee's residence, the charges for which, under appellant's rules and regulations, were payable monthly. On the 22d day of March, 1930, appellant rendered to appellee a bill for the previous month's service. Appellee failed to pay the bill, and on the 10th day of April, 1930, appellant cut the electric current out of appellee's home, which remained out for two days. Appellee was thereby deprived of electric lights for that length of time. He then paid the bill, and the current was restored.

Under the rules and regulations adopted by appellant, it charged its customers a gross rate and a net rate, the net rate being about ten per cent. less than the gross rate; and, if the customers paid their bills within ten days after date, they were entitled to the net rate; if paid after that time, they were chargeable with the gross rate. And appellant's rules and regulations provided further that, before a customer could be deprived of his electric current, appellant was required to give him a five-day cut-out notice in writing that, if he failed to pay his arrears before the expiration of five days after such notice, appellant should have the right to deprive him of the electric current.

On April 10, 1930, when the electric current was cut out of appellee's residence, he was in arrears for his March bill, and had been for eighteen days.

One of the questions in the case was whether the cut-out notice had been given. The evidence on behalf of appellant was that it had been given, while the evidence on the part of appellee was that it had not. In other words, there was a square conflict in the evidence on that issue of fact. Appellant's regulation providing for the cut-out notice was adopted for the mutual benefit of itself and its customers. It is a reasonable regulation, and binding on both appellant and appellee. The issue of fact, whether the notice was given by appellant before the electric current was withdrawn from appellee's residence, was submitted to the jury on proper instructions.

Appellee sought to hold appellant liable on another ground, namely that there was an understanding and agreement between appellant and appellee and the Bank of Commerce of Poplarville that appellant should present appellee's monthly light bill to the Bank of Commerce, and, when so presented, it should...