Southwestern Gas & Electric Co. v. Stanley, 6185.

• Decision Date: 14 March 1934
• Docket Number: No. 6185.,6185.
• Citation: 70 S.W.2d 413
• Parties: SOUTHWESTERN GAS & ELECTRIC CO. v. STANLEY.
• Court: Texas Supreme Court

Page 413

70 S.W.2d 413

SOUTHWESTERN GAS & ELECTRIC CO. v. STANLEY.

No. 6185.

Supreme Court of Texas.

March 14, 1934.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by H. F. Stanley against the Southwestern Gas & Electric Company. A judgment for plaintiff was affirmed by the Court of Civil Appeals [45 S.W.(2d) 671], and defendant brings error.

Affirmed.

See, also, Fort Worth Elevators Co. v. Russell, 70 S.W.(2d) 397; Morton Salt Co. v. Wells, 70 S.W.(2d) 409.

George Prendergast, of Marshall, for plaintiff in error.

Carney & Carney, of Atlanta, for defendant in error.

CURETON, Chief Justice.

Stanley recovered a judgment for actual and exemplary damages against the plaintiff in error, which upon appeal was affirmed by the Court of Civil Appeals. 45 S.W.(2d) 671. The statement of the case in the opinion of the Court of Civil Appeals is quite full, and we deem an elaborate statement here unnecessary. Stanley, with his family, resided in Queen City, Tex. His residence was wired and equipped for the use of electricity, used by him for ordinary household purposes, including lights and refrigeration, and for pumping water from his well. He also owned a business enterprise consisting of a filling station, garage, and grist mill, a few blocks from his residence, which was also equipped for the use of electricity. The Southwestern Gas & Electric Company was a public service corporation, with a plant in the neighboring town of Atlanta, from which it also supplied the town of Queen City with electric current. The company supplied Stanley with electricity at both his residence and business plant above described, but did so under separate contracts, and by different lines and through separate meters. The residence had been supplied with electricity several years before he had the current cut into his place of business. There was never any controversy between the parties as to the residence contract, or the payment of the bills relative thereto, prior to the act of the plaintiff in error which gave rise to this suit. However, some time prior to December, 1930, a controversy arose between the parties as to the correctness of the account and charges made with respect to the garage or business plant, which continued until in December, 1930, when the company cut off the electricity because the account had not been paid in accordance with its contentions. It is unnecessary to quote the evidence with reference to this account. The statement made by the Court of Civil Appeals shows that Stanley had failed to pay that account solely because he thought the meter installed by the company was working inaccurately and the account excessive. A reading of the statement of facts convinces us that Stanley had reasonable grounds for his contention, and was acting in good faith. In fact, a finding by the jury that the meter was either out of order or worthless would have been amply justified. However, while the difference over the garage account was still unadjusted, the company cut the electricity off from the garage or shop without first having its account reduced to judgment, or its accuracy determined by agreement.

If there is a contention made in good faith and upon apparently reasonable grounds by a customer that there has been an overcharge by a public service company, such as the plaintiff in error, service to the customer may not be shut off in advance of a judicial determination of the correctness of its contention. Withers v. Fort Worth Gas Co. (Tex. Civ. App.) 238 S. W. 324; Thornton On Oil & Gas (4th Ed.) vol. 1, § 633, p. 1320; Sickles v. Manhattan Gas-Light Co., 66 How. Prac. (N. Y.) 314; Wood v. Auburn, 87 Me. 287, 32 A. 906, 29 L. R. A. 379.

The suit before us, however, is not based on the act of the company in cutting off the current from Stanley's shop. We mention it here as showing the initial wrong by the company which finally culminated in the acts made the basis of this case.

Finally, on February 26, 1931, the company, because Stanley had not paid the garage or shop account, cut the electricity off from his residence, although the amount due on the residence account was tendered. The company declined to turn the current back, and left the residence without electricity until the district court by mandatory injunction forced the company to reconnect the residence with its line. This suit followed the act of the plaintiff in error in cutting off its current from Stanley's residence, and the jury awarded both actual and exemplary damages.

No complaint is here made as to the award of actual damages. The contention before us is that the award of exemplary damages was unjustified. We do not agree with that contention.

We again refer to the opinion of the Court of Civil Appeals for a statement of the facts of the case. Mr. Ramsey, the manager of the company, testified that he cut off the electricity from Stanley's residence solely because the shop account had not been paid. In part he testified:

"I did not inquire about Mr. Stanley, Mr. Stanley came to see me in December. Yes, the bill was there and solely for his shop. There was a different meter for the shop from the house. Yes, they were carried separately. He paid his house bill for August, September, October, November, and December. Yes, he paid them in full. Yes, I told him in February that unless he paid his shop bill I would have his house cut off. I knew those were two different bills. He did not beg me not to do it. You ask me if he did not say, `here's the money for my house, do not cut it off.' He wasn't pleading with me, and he did not beg me. Yes, he tendered to me the money for his house one time in the office, and I refused to take it. I cut him off anyway. You (Judge Carney) called me the night his lights were cut off. His lights were cut off about four o'clock in the afternoon. You say you called me about seven o'clock and told me the man had a Frigidaire and other stuff and begged me to put him back on. I don't know that I begged you. I don't know that you asked me to. Yes, you asked me by what authority I cut him off. I told you I had the authority to cut them off. Yes, I cut the man off at his house because he would (not) pay his shop bill. I did not know he had a...