Phelps v. Cape Girardeau Water Works & Electric Light Co.

• Decision Date: 07 May 1912
• Citation: 147 S.W. 130
• Court: Missouri Court of Appeals
• Parties: PHELPS v. CAPE GIRARDEAU WATER WORKS & ELECTRIC LIGHT CO.

147 S.W. 130

PHELPS v. CAPE GIRARDEAU WATER WORKS & ELECTRIC LIGHT CO.

St. Louis Court of Appeals. Missouri.

May 7, 1912.

1. APPEAL AND ERROR (§ 1108)—DETERMINATION —CHANGE IN STATE OF FACTS.

Matters arising in a cause after an appeal has been granted may be presented to the appellate court, and considered by it in disposing of the case.

2. APPEAL AND ERROR (§ 1108)—DETERMINATION —NECESSITY—CHANGE IN STATE OF FACTS.

Where plaintiff in an action for damages against a water company for breach of contract by shutting off his water also brought mandamus to compel restoration of the service, and after verdict and judgment for damages and appeal by the water company dismissed the mandamus on restoration of the water service, he could not object, on motion by the water company in the appellate court to dismiss the action, as substantially abated by the result of the mandamus proceeding, that the court could not consider such proceedings under Rev. St. 1909, § 2081, because their effect had not been passed on by the trial court.

3. APPEAL AND ERROR (§ 843) — REVIEW — QUESTIONS CONSIDERED — MOOT QUESTIONS.

An appellate court should not render judgment upon abstract questions, the decision of which is not necessary to the determination of the case.

4. APPEAL AND ERROR (§ 1108)—DETERMINATION —CHANGE IN STATE OF FACTS—MATTERS TO BE DECIDED.

Plaintiff sued defendant waterworks company for damages for wrongfully refusing to furnish water for plaintiff's hotel contrary to their contract, and afterwards plaintiff brought mandamus to compel defendant to restore the water service, alleging the contract and defendant's violation thereof, and defendant set out in its answer to the alternative writ a letter from plaintiff to the effect that he had repaired the elevator in his hotel, to operate which he used the water, and desired that it be turned on, and defendant replied thereto, notifying plaintiff that it had turned on the water under the old contract, whereupon the mandamus proceeding was dismissed by the relator, but not till after judgment for damages and appeal by the water company. Held, that the disposition of the mandamus proceeding left open for determination on appeal in the damage action only the amount of damages which plaintiff was entitled to recover for breach of the contract by shutting off the water.

5. WATERS AND WATER COURSES (§ 209)— WATER COMPANIES—CUTTING OFF SUPPLY— MEASURE OF DAMAGES.

Plaintiff's measure of damages in a tort action for defendant waterworks company's wrongful act in shutting off water from plaintiff's hotel, after having contracted to furnish it for a certain term, was the loss of rental between the discontinuance and the restoration of the water service, plaintiff not being entitled to recover for loss of patronage by

the lessee of the hotel or for expense in repairing damage to the elevator to operate which the water was furnished; his lease having required the lessee to repair, and only binding plaintiff to pay for the water.

6. WATERS AND WATER COURSES (§ 209)— PUBLIC WATER SUPPLY — DEPRIVATION OF WATER—REMEDIES OF CONSUMER.

If a waterworks company threatened to shut off the water used under contract to operate a hotel elevator, the hotel owner could either restrain the threatened action or compel the restoration of the water service by mandamus after it was shut off, or sue for breach of the contract as in tort for damages resulting from wrongfully shutting off the water, in which latter case he could only recover damages sustained up to the commencement of the action.

Appeal from Cape Girardeau Court of Common Pleas; R. G. Ranney, Judge.

Action by H. Clay Phelps against the Cape Girardeau Water Works & Electric Light Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Ely, Kelso & Miller, for appellant. R. H. Whitelaw, T. D. Hines, and J. H. Davis, for respondent.

REYNOLDS, P. J.

Under date of September 19, 1903, plaintiff, about to erect a hotel in the city of Cape Girardeau, obtained an agreement from defendant, in substance following: "On completion of the hotel * * * it is agreed by the Cape Girardeau Water Works and Electric Light Company, party of the first part, and H. C. Phelps, party of the second part, that for and in consideration of the sum of two hundred dollars per annum, payable quarterly, that the Cape Girardeau Water Works and Electric Light Company furnish sufficient water to run an elevator in the building H. C. Phelps is now erecting next to the post office. This contract is to run for ten years after the completion of the building, and when the elevator commences operations; that is, when the elevator starts running. If at any time during the continuance of this contract the building should be vacant for over thirty days, it is agreed by both parties that the party of the first part does not charge the party of the second part for the time it is vacant, provided the water is turned off." This was signed by both parties. The hotel contemplated was erected by plaintiff some time in 1903 and occupied January 1, 1904, and on its erection plaintiff leased it to various parties for short terms, and finally, on May 27, 1907, leased it to one Lennington for a term of three years, the term commencing June 1st of that year and ending May 31st, 1910, with an option to the lessee of two years renewal after the expiration of the three-year lease, the lessee agreeing to pay the lessor as monthly rental, payable in advance by the month for the first six months of the lease $175, and for each and every month thereafter during the remaining two and one-half years of the term the price and sum of $200, and for the two years extension a monthly rental of $200 payable in advance during each month of said two years. Among the covenants in the lease and the only one in it by the lessor relating to the elevator is this: "It is understood that said Phelps, the said party of the first part, is to pay for all water to run the elevator in said hotel, but all other water is to be furnished by the party of the second part at his own expense." On part of the lessee there is this covenant: "The said Grant E. Lennington, said party of the second part, agrees and binds himself to operate said hotel in an orderly manner, to keep in repair at his own expense the elevator, the electric wires, plumbing and furnace, the locks to doors and windows," etc. There is this further covenant on the part of the lessee: That he "is to keep in repair the screens for the doors and windows of the said hotel building, and such other repairs that would add to the comfort of the guests at said hotel at his own expense, except permanent repairs to the building, which when first consented to by the said party of the first part, are to be paid for by said party of the first part, H. Clay Phelps." It is further covenanted that the failure to pay rent at the times stipulated in the lease and to keep up repairs shall work an immediate forfeiture of the lease, and, finally, it is covenanted that "if the plumbing, elevator, sashlocks or any other things mentioned to be kept in repair by Lennington by terms of the lease is out of repair at this time, the same is to be placed in repair by Phelps." The elevator, a hydraulic one, appears to have been installed at the time of completion of the building and the water turned on and there appears to have been no trouble between the parties until about October 21, 1909, on which date the superintendent of defendant company wrote plaintiff a letter to this effect: "It has been reported by our foreman that the hydraulic elevator in the Terminal Hotel, owned by you, is leaking very badly. This must be repaired within three days, or we will be compelled to discontinue the service. We also desire to take this occasion to notify you that a water meter must be installed in the supply pipe to the elevator immediately, as we can no longer continue the flat rate which you have previously had. This meter must be installed by November 1st, or thereafter we will have to bill you for service for same at the rate which we estimate that the elevator uses water, which will be a great increase over your present rate." It appears that plaintiff refused to put in the meter and on the 29th of October, 1909, defendant turned off the water from the elevator, whereupon on the 2nd of November, 1909, plaintiff instituted this action.

In his petition he sets out that he is the owner of the hotel, a five-story building erected by him for and used as a hotel building and called the Terminal Hotel; that defendant is and was at the time in the petition mentioned, a public service corporation, organized and existing under the laws of this state and located at the city of Cape Girardeau for the purpose of furnishing water to the city and the inhabitants thereof for public and private uses; "that it is absolutely necessary in order to run and operate said hotel, to have an elevator for the use of guests, in going from the lower to the upper stories and vice versa;" that on the 19th of ...