Mountain State Water Co. v. Town Of Kingwood, (CC 604)

• Decision Date: 14 February 1939
• Docket Number: (CC 604)
• Citation: 121 W.Va. 66
• Court: West Virginia Supreme Court
• Parties: Mountain State Water Company, A Corporation, v. Townof Kingwood, A Municipal Corporation

121 W.Va. 66

Mountain State Water Company, A Corporation,

v. Townof Kingwood, A Municipal Corporation

(CC 604)

Supreme Court of Appeals of West Virginia.

Submitted January 17, 1939.

Decided February 14, 1939.

1. Judgment

In the drafting of pleadings in notice of motion for judgment proceedings, liberality is permitted. The notice, however, should state a good cause of action. In its appraisal, on demurrer, it may be supplemented by the accompanying affidavit and account.

2. Judgment

The common law rule barring the use of exhibits to pleadings is inapplicable in notice of motion for judgment proceedings. In the latter, exhibits may be resorted to and, if incorporated in the pleadings by proper reference, become a part thereof.

3. Public Service Commission

Under Code, 24-2-2, 3, the Public Service Commission of West Virginia has authority to regulate rates for services rendered by a public utility to a municipality, notwithstanding any pre-existing contractual rights between the municipal corporation and the utility.

4. Judgment

Where, in a notice of motion for judgment, a plaintiff seeks to establish liability against a defendant on the basis of a title or interest which originated in a third party, the notice should allege how said third party's rights became vested in plaintiff, if at all.

Error to Circuit Court, Preston County.

Action by the Mountain State Water Company against the Town of Kingwood to recover a judgment for services rendered by the plaintiff to the defendant in furnishing water for public fire protection. The circuit court overruled a demurrer to the notice of motion for judgment, and the ruling was certified to the Supreme Court of Appeals.

Ruling reversed; demurrer to notice sustained.

Kenna, Judge, and Fox, President, concurring in part, dissenting in part.

Ira E. Robinson and Kittle & Kittle, for plaintiff.

Charles P. Wilhelm and Frank E. Parrack, for defendant.

Riley, Judge:

This certificate involves the sufficiency of a notice of motion for judgment, an accompanying affidavit, a counter affidavit, and six pleas, demurrers to the notice and pleas, and motions to quash the affidavits, in each instance, having been overruled.

By its notice, Mountian State Water Company, a corporation, moved for judgment against the Town of Kingwood, a municipal corporation, in the amount of $4,531.33, with interest until paid, "upon the account which is hereto attached and made part hereof, for services rendered by the undersigned to you in furnishing water for public fire protection pursuant to the franchise granted on August 18, 1913, by you to Carlton C. Pierce, trustee, his successors and assigns, and pursuant to the order of the Public Service Commission of West Virginia, made and entered on March 14, 1932, fixing the rate to be paid by you for the aforesaid fire protection, a copy of which order is hereto attached and made a part hereof, under which order fire protection has been furnished by the undersigned to you, at your request, for the time stated in said account and to the amount and value therein stated, of which there remains unpaid the sum of $4,531.33 to the date hereof * * *

The order of the Public Service Commission, referred to above, after reciting that the proposed schedule of rates submitted by "Mountain State Utilities Corporation" was agreeable to the Town of Kingwood, except that the public fire charge should be reduced from $2,500.00 to $2,100.00 per annum, including right to use sufficient water to flush hydrants, etc., as evidenced by letter signed by the mayor and recorder of said town, and that such suggested modification had been agreed to by the "Moun- tain State Utilities Corporation", ordered that the schedule be so modified, and the investigation discontinued.

In the statutory affidavit, sworn to by Frank E. Hileman, general manager of plaintiff company, it is stated, among other things, that affiant has "personal knowledge of all material facts in relation to the account to which the affidavit is attached", and that the account "states distinctly the several items of the claim embraced in the notice * * * to which it is, with this affidavit, attached", etc. The account breaks down the yearly rate of $2,100.00, provided for in the order of the Public Service Commission, into monthly installments of $175.00 each, and under the heading, "class of service", carries the words, "Public Fire Protection." For the months of January and February, 1932, the charge is listed as $208.33, and from that time to May 25, 1937, the date of the notice, there is a flat charge of $175.00 per month, credit being given for payments as made.

In the appraisal of a notice of motion for judgment, a cardinal rule of construction permits liberality in the drafting of pleadings in such cases. Tuggle v. Belcher, 104 W. Va. 178, 139 S. E. 653. Nevertheless, a notice of motion for judgment, no matter how informal, must state a good cause of action. Citizens' National Bank v. Dixon, 94 W. Va. 21, 117 S. E. 685; Pelley v. Hibner, 93 W. Va. 169, 118 S. E. 923; Hastings v. Crump, 89 W. Va. 1ll, 108 S. E. 600.

Five grounds are urged in support of the demurrer to plaintiff's notice. For convenience, we shall not adhere to the order adopted by defendant.

The first ground of demurrer is to the effect that the notice does not set forth a contract between the parties. In this state, motions for judgment will be entertained only for the recovery of money based on contract. Lambert v. Morton, 111 W. Va. 25, 160 S. E. 223; White v. Conley, 108 W. Va. 658, 662, 152 S. E. 527; Houston v. Lawhead, 116 W. Va. 652, 182 S. E. 780, 782. So, at the outset, it becomes most pertinent to determine whether the notice in question sufficiently sets out a contractual obli- gation of defendant to pay plaintiff the sum of money claimed. Here, the notice alleges that plaintiff, at defendant's request, furnished water service for fire protection and flushing purposes during the period stated in the account. Assuming for the moment the order of the Public Service Commission is properly pleaded, and, by assignment from the Mountain State Utilities Corporation, inured to plaintiff's benefit, an assumption not borne out by the record under the present state of the pleadings, then defendant would be liable under the theory of a contract implied in fact. A municipal corporation in this state is liable for a contract implied in law. Cade v. City of Belington, 82 W. Va. 613, 96 S. E. 1053. Such liability may be established in a notice of motion for judgment proceeding. Lambert v. Morton, supra. A fortiori, this liability extends to a contract implied in fact and may be declared on by notice of motion.

The fifth and last ground of demurrer attacks the use of a copy of the order of the Public Service Commission as an exhibit to the notice. The use of exhibits to pleadings in common law actions is barred under the strict and stereotyped rules of the common law. State, use, etc. v. Pingley, 84 W. Va. 433, 100 S. E. 216; Vorholt v. Vorholt, 111 W. Va. 196, 160 S. E. 916. However, a review of our decisions indicates a practice prevailing among lawyers to resort to exhibits in notices of motion for judgment proceedings. Such practice has not been disapproved. In one case, a transcript of a judgment upon which recovery was sought was exhibited to the notice; in a second, a bond; and in another, an insurance policy. Grinrod Process Corporation v. Rothwell, 117 W. Va. 709, 189 S. E. 100; Stuart v. Carter, 79 W. Va. 92, 95, 90 S. E. 537, L. R. A. 1918D, 1070; Hawkins v. Insurance Co., 114 W. Va. 287, 171 S. E. 645. The liberality rule, as to notices of motion for judgment, is entirely consonant with the prevailing practice. It may be noted in passing that an accompanying affidavit may be used to supplement the notice. Peoples State Bank of Crown Point v. Jeffries, 99 W. Va. 399, 129 S. E. 462. And the account may be looked to for a like purpose. Wessel v. Bargamin, 137 Va. 701, 120 S. E. 287. In the last mentioned case a notice of motion for judgment, insufficient in itself because it simply alleged that the amount sought to be recovered was due from the defendant to plaintiff, was held sufficient because it was supplemented by an account attached, which set out the contract upon which the indebtedness was based. A similar state of facts, as disclosed by the printed record, is presented in Landsman-Hirscheimer Company v. Radwan, 90 W. Va. 590, 111 S. E. 507. However, in the latter case, the judgment in plaintiff's favor was reversed because the affidavit upon which it was based, in the absence of proof, was not made before or at the time of service of the notice and the attached account.

The second ground of demurrer is to the effect that the Public Service Commission was without authority to enter the order of March 14, 1932, in that by said order the Commission attempted to make a contract between plaintiff and defendant. This ground of demurrer is not well taken. The Public Service Commission of West Virginia has ample authority under Code, 24-2-2, 3, to regulate rates to be charged for services of public utilities. Any rate established by it, if permitted to stand, is valid and res adjudicata as to all matters determined. City of Huntington v. Public Service Commission, 91 W. Va. 346, 112 S. E. 571. The Commission's action in establishing the rate of March 14, 1932, in no way destroyed any of the contractual rights existing between the City and the Mountain State Utilities Corporation. City of Benwood v. Public Service Commission, 75 W. Va. 127, 83 S. E. 295, L. R. A. 1915C, 261. The order shows that the Town of Kingwood, through its proper officers, had notice thereof, and agreed to the rates provided thereby, and the notice, as supplemented by the affidavit and account, shows that the town continued to accept the service furnished by plaintiff under the approved schedule. We cannot say that by the order the Commission undertook to make a...