Thomas v. Mississippi Power & Light Co

• Decision Date: 22 January 1934
• Docket Number: 30844
• Parties: THOMAS et al. v. MISSISSIPPI POWER & LIGHT CO
• Court: Mississippi Supreme Court

152 So. 269

170 Miss. 811

THOMAS et al. v. MISSISSIPPI POWER & LIGHT CO

No. 30844

Supreme Court of Mississippi

January 22, 1934

Division B

1 ELECTRICITY.

Public utility must furnish service to general public without discrimination.

2 ELECTRICITY.

Public utility must so conduct internal business as not to impair its ability to perform public functions.

3 ELECTRICITY.

Patron cannot demand and enforce furnishing of electric current by reason of collateral or internal liability of utility not directly connected with particular physical service.

4 ELECTRICITY.

Patron of electric company held not entitled, by reason of ownership of stock in company and claim of company's agreement for repurchase thereof, to have electric current furnished in return for stock, without paying cash or equivalent.

5. INJUNCTION.

Where bill states no cause of action and injunction is dissolved on demurrer to bill, attorney's fees are recoverable on dissolution of injunction.

6. INJUNCTION.

Issuance of preliminary injunction without notice to defendant held improper, where chancellor resided nearby and there was no showing of extremely urgent circumstances or impracticability of giving notice.

7. INJUNCTION.

Mandatory injunction should never issue unless right thereto is shown beyond reasonable doubt, and irreparable injury would result unless issued.

8. INJUNCTION.

Court must allow damages on injunction bond in fullest amount sustainable on reasonable basis when injunction is obtained contrary to plain rules of law and amounts to arbitrary and oppressive abuse of process.

9. INJUNCTION.

Power company required by mandatory injunction to furnish electric current to customer in repayment for customer's stock in company held entitled, on dissolution of injunction, to recover on injunction bond amount due for current furnished while injunction was in force.

HON. R. W. CUTRER, Chancellor.

APPEAL from chancery court of Pike county, HON. R. W. CUTRER, Chancellor.

Action by E. M. Thomas and others against the Mississippi Power & Light Company for an injunction. From the decree dissolving the injunction and dismissing the bill, complainants appeal, and, from the action of the court in disallowing recovery on injunction bond, defendant cross-appeals. Affirmed on the direct appeal, and reversed and remanded, with directions, on the cross-appeal.

Affirmed on direct appeal; reversed and remanded on cross-appeal.

Williams & Hunt, of McComb, for appellants.

The courts have universally and strictly held to the rule that it is the duty of a public service electrical company to furnish service to all persons within its zone who comply with the reasonable regulations and conditions upon which such service is offered.

20 C. J. 333 and 334; Cumberland Tel. & Tel. Co. v. Hobart, 89 Miss. 252; State of Montana v. Butte City Water Co., 32 L. R. A. 697; State v. Butte E. & P. Co., 43 Mont. 118; Poole v. Paris Mountain Water Co., 128 Am. St. Rep. 923; O'Neal v. Citizens' Public Service Co., 154 S.E. 217.

Our position here is that it is not a reasonable rule or regulation of the company that the consumer must pay his bill in cash regardless of the existing mutual dealings between the parties and that the company did not have the right to discontinue the service while there was a dispute, not as to the amount of the bill it is true, but as to whether the bill could be paid by set-off or whether the bill could not be considered equitably as paid. The company could not, under section 537, Mississippi 1930 Code, have gone into a court of law and collected the bill without giving the consumer credit thereon for the amount due him by the company.

So. Iron Co. v. LaClede Power Co., 84 S.W. 450; Buffalo County Tel. Co. v. Turner, 118 N.W. 693; Central Power Co. v. Thomas, 145 Miss. 352.

So far as we could find the question of whether even a collateral bill could be used as set-off for a bill due by the consumer if this bill was admittedly due and correct and owing has never been presented. Certainly there seems to be no case where the company had directly promised to pay the bill in cash upon presentment at any time. In discussions on carriers we find the question hinted at but not definitely presented.

10 C. J. 677, 683; Johnson v. Hudson River R. Co., 32 N.Y.S. 298, 49 N.Y. 455; Texas, etc., R. Co. v. Smith, 38 Tex. Civ. App. 4, 84 S.W. 852.

A rule of the company to be binding on the consumer must be a part of the contract and the consumer must have notice thereof.

Curry v. Norwood Elec. Co., 211 N.Y.S. 441.

The bill of complaint presents a state of facts entitling complainant to equitable relief in the nature of specific performance, which would compel the performance of the contract made by defendant either in the precise terms agreed on or such a substantial performance as will do justice between the parties under the circumstances by accounting and set-off. The bill is at least prima facie based on good grounds, even though some features of the contract could not be enforced.

Bryan v. Canady, 169 N.C. 579, 86 S.E. 584; Smith v. Smith, 4 Rand, 95; Pearson v. Millare, 63 S.E. 1053; 32 C. J., Injunctions, page 186; City of Holton v. Kansas Power & Light Co., 9 P.2d 675; Pomeroy's Specific Performance (3 Ed.), 6; 58 C. J. 911; 58 C. J. 1033; Northern Trust Co. v. Markell, 61 Minn. 271, 63 N.W. 735; Wait v. Kern River Min. Mill & Developing Co., 157 Cal. 16, 106 P. 98; Pitts v. Carothers, 152 Miss. 694, 120 So. 830; 10 R. C. L. 18, 20, 21 and 22; Camden Sewer Co. v. Mayor and Council of Salisbury, 160 A. 4; Edison Illuminating Co. v. Eastern Pa. Power Co., 98 A. 652; Cole v. Cole Realty Co., 135 N.W. 329; Pipe Line Co. v. Empire Natural Gas Co., 33 F.2d 248; Smith v. Smith, 84 N.J.Eq. 229, 93 A. 890; Pennsylvania R. Co. v. Bogert, 59 A. 100; First National Bank v. Corporation Securities Co., 150 N.W. 1084.

We submit that specific performance being the normal termination of this contract it should not be denied especially where the legal remedy is uncertain and less adequate to promote justice to both parties.

This right to specific performance is presented here only upon demurrer. Equity does not favor a demurrer to a bill of complaint. When a bill is sustainable on any lawful theory a demurrer to it does not lie. Every reasonable intendment arising on the pleading excepted to shall be indulged in favor of its sufficiency.

58 C. J., Specific Performance, page 1179; Welling v. Crosland, 123 S.E. 996; 58 C. J. 1180; Schuyler v. Kirk Brown Realty Co., 178 N.Y.S. 568; Scott v. Carter, 76 A. 1056; Robinson v. Collier, 115 S.W. 915.

If a declaration be good as to part of what is demanded, a demurrer to the whole declaration should be overruled.

Board of Education v. Mobile & R. Co., 71 Miss. 500; Cummings v. Daugherty, 73 Miss. 405; Washington v. Soria, 73 Miss. 665; Grego v. Grego, 78 Miss. 443, 28 So. 817; Citizens Bank v. Tracy, 120 Miss. 413, 82 So. 307; Miller v. State, 114 Miss. 713, 75 So. 549.

In Huguley v. Hamburg, 191 Ill. A. 21, it was held that the mere fact that a bill prays for more kinds of relief than may be properly granted is no ground for sustaining a general demurrer to the bill and dismissing it for want of equity.

Harris v. Knickerbacker, 5 Wend. 638; U. S. v. United Shoe Co., 234 F. 127; McDonald v. Kemper, 89 Miss. 221.

A preliminary injunction as an ancillary of specific performance may be granted for the preserving of the status quo where an injury apprehended from breaches of the contract is of a nature not capable of adequate compensation in damages at law.

58 C. J. 1145, 1146; Magruder v. Belle Fourche Valley Water User's Ass'n, C. C. A. 8, 219 F. 72; American Smelting & Refining Co. v. Bunker Hill Mining, etc., Co., 248 F. 172; Texas Co. v. Central Fuel Oil Co., 194 F. 22; Fondtosa Highlands v. Paramount Developing Co., 248 N.W. 131.

The contract sued upon is not illegal, nor is it contrary to the public policy of the state of Mississippi.

21 C. J. 432; Fleitman v. John M. Stone, 189 F. 466; Consolidated Music Co. et al. v. Brinkerhoff Piano Co., 64 F.2d 884; 44 L. R. A. (N. S.) 156; Porter v. Plymouth Gold Mining Co., 29 Mont. 347, 74 P. 938, 101 Am. St. Rep. 569; Grace Security Corporation v. Robers, 164 S.E. 700; Simonds v. Noland, 142 Wash. 423, 253 P. 638; Houster v. Newkirk Co., 141 P. 790; Hoppkin Lowering Co. v. Swartz, 249 N.Y. 206, 163 N.E. 736.

Even if ancillary injunction was improper, damages are not necessarily awarded, and never awarded unless actual. Attorney's fees are not element of damages where injunction is merely ancillary.

1 Spell Extr. Relief, par. 956; 10 Am. & Eng. Enc. Law, page 997, note; Smith v. Kuhl, 26 N.J.Eq. 97; Russell v. Farley, 105 U.S. 433; Meyers v. Block, 120 U.S. 214, 7 S.Ct. 525; Kendrick v. Robinson, 145 Miss. 585; Mims v. Swindle, 124 Miss. 686; Staple Cotton Cooperative Ass'n v. Buckley, 141 Miss. 483; Kountz v. Kirkpatrick, 12 Am. Rep. 687; 32 C. J., page 462.

Price & Price, of Magnolia, Green, Green & Jackson, of Jackson, and Kennedy Geisenberger, of Natchez, for appellee.

Appeal barred by failure of parties against whom decree rendered to join therein.

Hartford Accident & Indemnity Co. v. Bunn, 285 U.S. 177, 76 L.Ed. 685; Capital National Bank v. Board of Supervisors, 286 U.S. 550, 76 L.Ed. 1286; Wilson v. Lexington, 153 Miss. 207, 119 So. 795.

A certificate of preferred stock in a corporation does not create the relationship of debtor and creditor and such stock cannot be offset against bills for electric current.

Harper v. Calhoun, 7 How. 203; Kom v. Cody Detective Agency, 136 P. 1155, 50 L. R. A. (N. S.) 1073; 14 C. J 416, sec. 574; Warren v. King, 108 U.S. 389, 27 L.Ed. 769; Fryer v. Weidemann, 39...