Sims v. Alabama Water Co.

• Decision Date: 23 December 1920
• Docket Number: 7 Div. 93
• Citation: 87 So. 688,205 Ala. 378
• Parties: SIMS v. ALABAMA WATER CO.
• Court: Alabama Supreme Court

87 So. 688

205 Ala. 378

SIMS v. ALABAMA WATER CO.

7 Div. 93

Supreme Court of Alabama

December 23, 1920

Rehearing Denied Feb. 19, 1921

Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.

Action by C.M. Sims against the Alabama Water Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Thomas J., dissenting.

p>Page Chas. F. Douglas, of Anniston, for appellant.

Knox Acker, Dixon & Sterne, of Anniston, for appellee.

SAYRE J.

Appellant brought this action for damages against appellee, alleging that, having for some time been a customer of the appellee, a water company operating in the city of Anniston under a contract with said city in accordance with which it was supplying water to the people thereof, appellee had wrongfully cut off her water supply. Some of the counts alleged that appellee had acted wrongfully, wantonly, and willfully in the premises.

The evidence showed without dispute that appellant and another occupied the building to which the water was furnished; that a hallway separated the parts occupied by their two families that both families used water from one tap on the back porch that the other family had never applied to appellee for water or a connection with its main; that appellee furnished its water to appellant, and had no contractual relations whatever with the other family; that, assuming appellant's liability for the water used by the other tenant, she was in arrear for two minimum charges for the then last quarter and a like sum required by appellee as a payment in advance for the current quarter; that appellant offered to pay the sums due, expressly stipulating that one-half the payment was for her own account, one-half for account of the other tenant; that appellee offered to take the whole amount for account of appellant, but refused to take any part of it for account of the other tenant; that appellee refused to pay in that way, whereupon, after the lapse of some time, appellee cut off the water. Appellee defended under its contract with the city of Anniston whereby it had stipulated that it should have--

"the right to discontinue the supply of water to any person or corporation upon the failure of such person or corporation to pay for the water used or consumed by him or it, or upon the failure of such person to keep a deposit of two dollars with the party of the first part [appellee] to secure the payment of the water rental, and that the word 'consumer' in its contract should be construed to mean 'each separate family, business, firm, corporation or individual, using water for domestic or commercial purposes, and shall not include manufacturers and railroads.' "

This defense was established without dispute, and it was legally sufficient.

The general rule is that private or municipal corporations furnishing the public with water may adopt and enforce a rule that water will be shut off for nonpayment, and may prescribe a reasonable minimum advance payment which also may be enforced likewise, Mansfield v. Humphreys Mfg. Co., 82 Ohio St. 216, 92 N.E. 233, 31 L.R.A. (N.S.) 301, 19 Ann.Cas. 842, note, page 847, where many cases are cited, including Hieronymus v. Bienville Waterworks Co., 131 Ala. 447, 31 So. 31.

In Birmingham Waterworks Co. v. Brooks, 16 Ala.App. 209, 76 So. 515, it was decided that, if the water company, in supplying one of several consumers through a common service pipe, would be compelled to supply the others without compensation, it has a legal right to refuse to supply the one through such pipe, on the ground that he had not provided, as it was his duty to do, a separate service pipe through which he could be supplied without loss. This court denied a writ of certiorari seeking to review and revise the judgment of the Court of Appeals (Ex parte Brooks, 200 Ala. 697, 76 So. 995), and our judgment now is that the case was properly decided. Cox v. Cynthiana, 123 Ky. 363, 96 S.W. 456. As observed by Thompson, J., in McDaniel v. Springfield Waterworks Co., 48 Mo.App. 273:

"The slightest reflection will show that a water company could not do business if its only remedy for the waste of its water by its consumers consisted in actions at law against them severally."

It results, in principle, that appellee here was within its legal right in demanding of appellant past-due and minimum advance charges for both families.

Nor was appellee bound to accept payment for the other tenant from appellant, since, by the conditions of her tender, appellant sought to coerce from appellee an acknowledgment of the right of such other, who, as we have heretofore pointed out, had no contractual relations with appellee, to receive water through a common service pipe. The other tenant was a stranger to the contract between appellant and appellee, appellant's tender for such other was the act of a volunteer, not binding upon appellee. 38 Cyc. 155; 16 Ala.App. supra.

Appellant cites cases which hold that neither a water company nor a municipality can arbitrarily cut off a consumer's water supply--to quote the further language of the note to Mansfield v. Humphreys Mfg. Co., supra, from which appellant's cases are taken--"merely because he refuses to pay a claim for water rent, where the consumer's liability, or the accuracy of the amount claimed, is a matter of just dispute between the parties." This statement of the law is sound of course, so far as it goes; but we doubt that it fully covers the question at issue, for the weight of authority seems to hold that, in case of a bona fide dispute as to the amount demandable for water supplied or to be supplied under reasonable regulation requiring payment in advance, the consumer's recourse, if put to it in order to save his supply of water pending a settlement of the dispute, is...