Northern States Power Co. v. Lyon Food Products, Inc.

• Decision Date: 23 May 1975
• Docket Number: No. 44689,44689
• Citation: 229 N.W.2d 521,304 Minn. 196
• Parties: NORTHERN STATES POWER COMPANY, Appellant, v. LYON FOOD PRODUCTS, INC., Respondent.
• Court: Minnesota Supreme Court

Page 521

229 N.W.2d 521

304 Minn. 196

NORTHERN STATES POWER COMPANY, Appellant, v. LYON FOOD PRODUCTS, INC., Respondent.

No. 44689.

Supreme Court of Minnesota.

May 23, 1975.

Syllabus by the Court

1. Findings of fact by the trial court will be set aside only if clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.

2. The evidence clearly establishes that the meter installed by plaintiff was faulty during the entire period for which recovery is sought.

3. The trial court, having found that the plaintiff had sustained damage, had sufficient evidence to establish the amount of damage.

Mackall, Crounse & Moore, and Franz P. Jevene III, Minneapolis, for appellant.

Carlsen, Greiner & Law, and Jack D. Elmquist, Minneapolis, for respondent.

Heard before OTIS, TODD, and MacLAUGHLIN, JJ., and considered and decided by the court en banc.

TODD, Justice.

Plaintiff appeals from a judgment for defendant on its claim for electrical services furnished but not billed, due to a meter defect, during the period February 1, 1967, through March 3, 1970. The lower court determined that defendant received some electricity for which it was not billed, but found that, although the meter was inaccurate on March 3, 1970, and at some time prior thereto, it was not apparent when it became inaccurate; and further, that plaintiff had not sustained its burden of proof as to the amount of its damages. We reverse.

Plaintiff, Northern States Power Company, is a Minnesota corporation engaged in providing electricity to users in the upper midwest. Defendant, Lyon Food Products, Inc., is a Minnesota corporation engaged in the processing and selling of spiced herring and ludefisk.

Prior to August 2, 1965, plaintiff installed metering equipment to measure defendant's usage of electricity. On August 2, 1965, an employee of plaintiff tested the metering equipment for accuracy. The test results indicated that the meter registered within .3 percent of standard. However, because there was no electricity then being used on defendant's premises, the employee was unable to test the circuit between the current transformers and the meter to insure that all energy was being registered. On January 3, 1966, defendant subscribed to receive electrical service for its newly constructed premises located at 2301 Nevada Avenue North, Golden Valley, Minnesota. The electrical system installed at defendant's premises consisted of three 'hot' wires, each of which supplied 120 volts of current. Under proper conditions, these three wires were hooked into the meter by three 'jumper' wires, and the meter was to measure the total energy used by all three wires. Defendant's electric bill was based on the total number of kilowatt hours used during the month and the 'demand' (i.e., the greatest amount of kilowatts used during any 15-minute period during the month).

From the commencement of electric service, defendant paid each monthly bill as it came due. Between February 1, 1967, and March 4, 1970, defendant paid the total sum of $5,764.20. The average monthly bill was approximately $156. Since records for service prior to February 1, 1967, were not available, plaintiff limited its claim to the period following this date. On March 3, 1970, an employee of plaintiff conducted a routine test and examination of the metering equipment at defendant's premises. This was the first test since the original installation in 1965. During the test, it was discovered that the three 'jumper' wires were missing, resulting in a situation where the current from two of the 'hot' lines was not going through the meter for registration. Thus, the meter was only registering the current used by defendant through one of the 'hot' wires. The meter was tested both before and after replacement of the missing 'jumper' wires. Prior to the replacement of the wires, the meter dial turned 8 revolutions in 120 seconds. After replacement, the dial turned 20 times in 120 seconds.

Mr. John Anderson, plaintiff's meter superintendent, upon receiving the report of a malfunction, directed the installation of a test meter to determine the extent of the malfunction. The meter was installed on March 18, 1970, and removed on April 2, 1970. It was connected so as to measure only the electricity used through the third 'hot' wire, the wire which was being measured prior to the repairs. The existing meter continued to register defendant's total electricity usage during the 15-day period the test meter was in place. During the test period, the test meter registered a usage of 35-kilowatt hours and a top demand of .19 kilowatts through the third hot wire. The existing meter registered total usage of 107-kilowatt hours and a top demand of .64 kilowatts through all three wires combined. Thus, during the test period, defendant's total electricity usage was slightly over three times that of line three alone.

Immediately after replacement of the missing wires, defendant's average monthly bill rose approximately threefold. Anderson, accepted by the trial court as an expert witness in the field of metering equipment, testified that, in his opinion, during the period from February 1967 through March 1970, the meter located on defendant's premises was registering 'very, very close' to one-third the electricity actually used by defendant during that period. In addition, Anderson testified that defendant's measured electricity usage from March 1970 to February 1973, following the meter repair, was approximately three times the measured usage of the period from 1967 to 1970 prior to repair of the meter. The one-third ratio could not be perfectly exact because of slight variations in the 'balance' of the three lines. Any one line could, at any given time, have a different amount of current being used on its circuit. Also, the lines could be unbalanced due to the different types of machinery on each line. It is possible that all of Lyon's equipment could have been connected to just one line, although one of plaintiff's witnesses testified that this would be unlikely. It is to the economic advantage of the customer to balance his load equally over the three lines, and it is probable that the equipment in defendant's facility was closely balanced. The testimony of defendant's president was that no major equipment had been added to the facility in 1970 and only gradual replacement of machinery took place from 1967 to 1970. He did not assert that the machinery in his plant was not 'in balance.'

Defendant points out that it was in no way responsible for the malfunction of the meter. Further, defendant relies on the fact that there was no direct testimony as to when the meter became defective. However, plaintiff's records of services and charges to defendant for the period in question show no material variations other than seasonal demands and establish a general pattern of consistency during the entire period. Moreover, plaintiff placed in evidence graphs illustrating the kilowatt hours and demand as registered on plaintiff's meter for defendant's service during the period in question. Plaintiff then graphed those figures as multiplied by three, further plotting the readings from the corrected meter for an additional 3-year period. Comparison of the graph charts for the period following discovery of the error with the multiplied readings recorded on the defective meter shows an amazing consistency.

Plaintiff computed the amount allegedly owed by defendant by multiplying the kilowatt hours originally charged for the period in question by three, taking into account the marginal decrease in rates for the increase in consumption and rate changes during the period. Under this method, plaintiff alleges that it was entitled to recover from defendant the sum of $10,842.49.

The lower court in its findings of fact...