Mobile Electric Co. v. Nelson

• Decision Date: 31 May 1923
• Docket Number: 1 Div. 235.
• Parties: MOBILE ELECTRIC CO. v. NELSON.
• Court: Alabama Supreme Court

96 So. 713

209 Ala. 554

MOBILE ELECTRIC CO. v. NELSON.

1 Div. 235.

Supreme Court of Alabama

May 31, 1923

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action for damages by Charles A. Nelson against the Mobile Electric Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The amended complaint is as follows:

"First Count. Plaintiff claims of defendant $5,000 as damages for that heretofore on, to wit, March 15, 1921, the defendant was, and for a long time theretofore had been, a public service corporation, engaged in furnishing for compensation electricity for lighting and other purposes to persons in the city of Mobile, Ala., and this defendant had agreed with plaintiff to furnish electricity to plaintiff at his home, known as No. 600 1/2 South Wilkinson street, in the city of Mobile, Ala., and to charge plaintiff therefor at the rate fixed by the Alabama Public Service Commission and in such capacity as a public service corporation the said defendant, for compensation as aforesaid, had been from, to wit, September 27, 1920, down to and including March 15, 1921, furnishing electricity to the plaintiff at the home of the plaintiff in the city of Mobile, Ala.; that on, to wit, October 27, 1920, the defendant rendered to the plaintiff a bill for such current showing a reading of the electric meter at the plaintiff's said home of 391 K W. H. as of, to wit, October 26, 1920, and reciting that 11 K. W. H. of electricity had been consumed at said residence between, to wit, September 27, 1920, and, to wit, October 26, 1920, and said bill averred that $1.25, including discount, was due from plaintiff to defendant for such electric current; that on, to wit, November 26, 1920, said defendant presented to plaintiff another bill in which was recited that 14 K. W. H. of such current had been consumed at said residence between, to wit, October 26, 1920, and to wit, November 25, 1920, and said bill recited that $1.40, including discount, was due for said current; that plaintiff paid both of said bills; that thereafter and on, to wit, December 27, 1920, said defendant presented to plaintiff another bill in which was recited that 24 K. W. H. of such current had been consumed at said residence between, to wit, November 25, 1920, and December 26, 1920, and the said bill recited that $2.40, including discount, was due for such current; and that on, to wit, January 27, 1921, said defendant presented to plaintiff another bill in which was recited that 25 K. W. H. of such current had been consumed at said residence between, to wit, December 27, 1920, and, to wit, January 26, 1921, and said bill recited that $2.50, including discount, was due for such current, so that said bill recited that on said date of, to wit, January 26, 1921, the said meter read 454 K. W. H. And plaintiff avers that on, to wit, February 25, 1921, the defendant presented to plaintiff another bill, in which was recited that no K. W. H. of current had been consumed between the dates of, to wit, January 26, 1921, and, to wit, February 24, 1921, and recited that the meter still read 454, but further recited that $1.25, including discount, was due by plaintiff to defendant for services during, to wit, said period; and plaintiff avers that he (the plaintiff) did not pay the bills for service rendered after, to wit, November 26, 1920, in that said bills were erroneous, in that the sums mentioned therein as due by plaintiff to defendant were in excess of the amounts in fact due by plaintiff to defendant, but that the plaintiff continued to use the electric current furnished to him by the defendant down to, to wit, March 15, 1921, and that on, to wit, March 15, 1921, the said meter read only, to wit, 451, whereas the bill presented to plaintiff on, to wit, January 26, 1921, recited that the meter read on, to wit, January 26, 1921, 454, and the bill presented to plaintiff on, to wit February 25, 1921, also recited that on, to wit February 25, 1921, the said meter, then, to wit, on February 24, 1921, read 454, and plaintiff avers that he, the plaintiff, knew from said bills at, to wit, the times when they were so presented to him by the defendant that they were incorrect; and plaintiff avers that the said bills were incorrect, as above stated; and plaintiff avers that he refused to pay the said erroneous bills and notified defendant that he had not used the amount of current for which defendant demanded payment, and that on, to wit, March 15, 1921, the defendant, through its agents and servants, acting within the line and scope of their authority as such agents and servants, and in violation of its duty to plaintiff, did wantonly and recklessly cut off the current from the plaintiff's said residence, and did thereby deprive him of the use of said current, and that the defendant has not, prior to the bringing of this suit, and since the said current was cut off as aforesaid, again furnished said current to the plaintiff's said residence, and plaintiff avers that by the said wrongful act of the said defendant in depriving him of said current as aforesaid, he was forced to forego the use of electricity in his said home, to which electric current he was of right in law entitled; that the Alabama Public Service Commission had theretofore fixed the rate which was chargeable by the said defendant to a certain class of patrons of the defendant, of which class the plaintiff was a member, and that the defendant was not entitled to charge the plaintiff a greater sum than was so fixed by that said Commission, and that the defendant was also in duty bound to the plaintiff to furnish to plaintiff correct bills, but that the defendant breached said duty as aforesaid, and as a proximate consequence of the said wrongful act of defendant in cutting off the current as aforesaid, and in depriving the plaintiff of the use thereof, the plaintiff was put to much inconvenience, and was forced to purchase, at his own expense, other means of obtaining light at night, all to the plaintiff's damage in the said sum of $5,000, wherefore he sues.

"Second Count. Plaintiff claims of defendant $5,000 damages for that heretofore on, to wit, March 16, 1921, the defendant was a public service corporation, engaged in furnishing electricity to persons in the city of Mobile, Ala., for compensation, and this defendant had agreed with plaintiff to furnish electricity to plaintiff at his home, known as No. 600 1/2 South Wilkinson street, in the city of Mobile, Ala., and to charge plaintiff therefor at the rate fixed by the Alabama Public Service Commission, and, pursuant to such agreement and its duty in the premises, defendant furnished electric current to the plaintiff, and plaintiff avers that on, to wit, March 16, 1921, defendant demanded of the plaintiff that the plaintiff pay to the defendant the sum of, to wit, $5.90 for electric current which had been so furnished to plaintiff by defendant; but plaintiff avers that the said sum exceeded the amount which plaintiff then owed to the said defendant for electric current which he had consumed, in the sum of, to wit, $2.50, and plaintiff avers that because the plaintiff would not pay to the defendant the said sum of $5.90 the defendant, by its agents or servants, acting within the line and scope of their authority as such servants or agents, and in violation of defendant's duty to plaintiff, willfully or wantonly and recklessly disconnected the wire which carried the said current into the home of the plaintiff, and the defendant has not restored service to the plaintiff, and as a proximate consequence of the said willful or wanton and reckless act the plaintiff lost the use of electricity in his home, and was forced thereby to purchase and use for lighting purposes, to wit, candles, oil, and lamps, and was put to much humiliation and suffered much mental anguish, all to his damage in the sum of $5,000."

The complaint was further amended by striking out of each count the words "rate fixed by the Alabama Public Service Commission," and inserting in lieu thereof the words "regular published schedule of the company."

Defendant interposed the following grounds of demurrer to each count of the complaint as amended:

"(1) Because said count fails to allege that the contract or agreement, on the part of the defendant, to furnish electricity was made with the plaintiff, or in behalf of the plaintiff.

"(2) Because said count fails to allege that the defendant was under contract, either expressed or implied, to furnish electricity to the plaintiff.

"(3) Because said count fails to allege that the said electricity was wrongfully cut out by the defendant.

"(4) Because said count shows on its face that the said electricity was rightfully cut out by the defendant.

"(5) Because said count shows on its face that the plaintiff had failed to pay his bill for electric current consumed by him, and that the defendant had rightfully cut out the said electricity.

"(6) Because said count shows on its face that the plaintiff was indebted to the defendant for electricity consumed by him, and that he failed to pay, or tender the amount due by him for electricity so consumed by him, and that the defendant had the right to cut out said electricity by reason of the failure of the plaintiff to pay, or tender the correct amount due for electricity consumed by him."

Special plea 3 reads as follows:

"(3) That the contract made by the defendant with the plaintiff contained the following provision: 'The undersigned further expressly gives the company authority to discontinue its service if any bill is not paid within ten days from its maturity, whether demand has been made therefor or not, and further agrees that upon the issuance...