Vanderberg v. Kansas City Missouri Gas Co.

• Decision Date: 04 November 1907
• Citation: Vanderberg v. Kansas City Missouri Gas Co., 126 Mo. App. 600, 105 S. W. 17 (Kan. App. 1907)
• Parties: MARY VANDERBERG, Appellant, v. KANSAS CITY MISSOURI GAS COMPANY, Respondent
• Court: Kansas Court of Appeals

105 S.W. 17

126 Mo.App. 600

MARY VANDERBERG, Appellant, v. KANSAS CITY MISSOURI GAS COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

November 4, 1907

Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.

AFFIRMED.

Judgment affirmed.

Burnham & Brewster for appellant.

A public service corporation, like a gas company, possessing a grant and franchise from the public, the grant thus resting upon a public and reciprocal relation imposes upon the company the legal obligation to serve all members of the public impartially, and to permit all such to use gas who offer to pay, and abide the reasonable rules, etc. State ex rel. v. Consumers' Gas Co., 55 L. R. A. 248;Rushville v. Gas Company,15 L. R. A. 321;State ex rel. v. Gas & Oil Co.,21 L. R. A. 639, 135 Ind. 54;State ex rel. v. Gas Co.,57 L. R. A. 761;Shepard v. Gas & Light Co.,6 Wis. 539;Gas Light Co. v. Collidig,25 Md. 1;Williams v. Gas Co.,52 Mich. 499;Moray v. Gas Co.,38 N.Y 185;Pub. Co. v. Associated Press,184 Ill. 438;Waterworks Co. v. State ex rel.,46 Neb. 194;Gas & Mill Co. v. Mendenhall,142 Ind. 538;Coy v. Gas Co.,146 Ind. 655;Munn v. Illinois,94 U.S. 113;Railroad v. Transit Co.,45 N.J.Eq. 50.(2) When a dispute arises between a company and a consumer the latter is entitled to have his rights investigated by the courts.Sickle v. Gas Co., How.Pr. (N. Y.) 33;66 How. Pr.(N. Y.) 314;2 Page on Public Corporation, sec. 835.(3) Gas companies are somewhat public in their nature, and owe a duty to supply gas to all.Cook on Stock and Stockholders, sec. 674;State v. Gas Light and C Company,34 Ohio St. 572, 32 Am. Rep. 390;Gas Light Company v. Light and H. P. Manufacturing Co.,115 U.S. 650;Public v. Light Co.,45 Barb. 136;Gibbons v. Gas Co.,130 U.S. 396;Williams v. Gas Co.,52 Mich. 499, 50 Am. Rep. 266;Light Co. v. Richardson, 63 Barb. 437.

Gage, Ladd & Small for respondent.

(1) The demurrer to the evidence was properly sustained.Grandy v. Hadcock,83 N.Y.S. 90.(2) The provision in this contract that the gas might be shut off unless all back bills--whether for gas used by the applicant on said premises or on any other premises--were paid, was, under defendant's franchise from the city, perfectly valid.Gas Co. v. Cadieux,68 L. J. P. C. 126;Same v. Same,11 Can. Q. B. 93;Commonwealth v. Philadelphia,132 Pa. St. 288, 19 A. 136.(3) It is well settled that a gas company has the right to make reasonable rules for the transaction of its business, and may shut off gas for failure to comply therewith.State ex rel. v. Gas Co.,34 Mo.App. 501;Wendall v. State,62 Wis. 300;Williams v. Gas Co.,52 Mich. 499, 18 N.W. 236;Shiras v. Ewing, 48 Kans. 170, 29 P. 320;Harrison v. Water Co.,53 S.W. 993;Water Co. v. Stanley,61 P. 518;Commonwealth v. Philadelphia,132 Pa. St. 288;19 A. 136;Gas Co. v. Cadieux,68 L. J. P. C. 126;Same v. Same, 11 Can. Q. B. 93.

OPINION

JOHNSON, J.

--It appears from the allegations of the petition that plaintiff was a tenant from month to month of a rooming house in Kansas City known as Number 1314 East Tenth street; that the house was properly fitted with pipes and fixtures for the consumption of gas for light and fuel; that defendant owned a franchise granted by the city and enjoyed a monopoly of the business of manufacturing and vending gas; that the pipes in plaintiff's house were connected with one of defendant's mains; that on February 10, 1903, defendant, at the request of plaintiff, undertook to supply gas for use in said house, "but thereafter, without any just cause or excuse, turned and cut off said gas from said house on the 16th day of February, 1903; that afterwards on the 18th day of February, 1903, plaintiff again applied to defendant and requested them to furnish gas for use in said house and tendered to defendant the sum of $ 30 as a deposit on account of any gas furnished and offered to make any deposit required by said company to secure payment for said gas and offered to comply with all reasonable rules and regulations of defendant relative to the use of said gas and payment therefor, but that the defendant refused and still refuses to furnish plaintiff gas for use in said house."Actual damages are laid at five thousand dollars for the recovery of which plaintiff prays judgment and in addition, she asks for punitive damages in the sum of five thousand dollars.At the conclusion of plaintiff's evidence, the learned trial judge ruled the facts adduced by her insufficient to support a cause of action, whereupon she took a nonsuit with leave to move to set the same aside.In due time, an appeal was granted to the Supreme Court but that tribunal held it had no jurisdiction and certified the cause to this court.[Vanderberg v. Gas Co.,199 Mo. 455, 97 S.W. 908.]

Plaintiff's family consisted of her husband, herself and their three children.They occupied an apartment of three rooms at the rooming house described in the petition.The husband's name was William Walter Murphy Vanderberg and he was a paper hanger engaged in business in Kansas City.Plaintiff testified that for some years she had been engaged on her own account in the business of conducting a rooming house; that all of the household furniture used by her family had been bought by her and paid for out of her own money, and that she had attended personally to renting the premises where they lived and had paid the rent with money earned by her.It appears, however, that when she rented the premises at the office of the real estate agents who represented the owner, she was accompanied by her son whose name is Walter William Vanderberg.When the agent wrote the receipt for the first month's rent, he asked "What is the name?" and the young man, supposing he was being asked to give his name, replied "Walter W. Vanderberg."The agent then wrote that name in the receipt as the name of the tenant to whom the premises were rented and handed the paper to the son.Subsequent receipts for rent were invariably made out with the name of W. W. Vanderberg or W. Vanderberg as the tenant and were accepted without objection.

On February 10, 1903, plaintiff made written application to defendant for gas to be supplied to the rooming house and stated therein that the gas was "to be supplied to me, William Walter Murphy Vanderberg, at the premises No. 1314 East Tenth street, occupied by applicant as a residence" and agreed "that the duly authorized agents of the said company shall have free access to the meter and its connections at all reasonable hours and for any lawful purpose and may remove the same upon any failure to comply with the provisions hereof or with any of the lawful rules of the company."The application was signed W. W. M. Vanderberg by Mary Vanderberg.In explanation of the fact that she made the application in the name of her husband, plaintiff states that she told defendant at the time that she was the real applicant, but defendant told her to sign her husband's name as well as her own.In about a week after the gas had been turned on, plaintiff, while in the office of defendant on some other business, was presented with two old bills which defendant claimed her husband had failed to pay.One was a bill for ten dollars which had been running for six or seven years, and which was for gas furnished at a place of business which the husband had conducted on Walnut street.The other was for $ 1.90 for gas furnished at a former residence of the family in Kansas City.Plaintiff paid the latter bill but refused to pay the other.A controversy ensued which extended over two or three days, when defendant brought matters to a head by shutting off the gas.Afterward plaintiff endeavored to persuade defendant to furnish her with gas on the representation that she was running the rooming house, that her husband had nothing to do with it, and that she would make any reasonable deposit of cash to guarantee the payment of her monthly bills.Her proposal was declined and this suit followed.There was evidence introduced which tended to show that actual damages had been sustained in consequence of the discontinuance by defendant of its service.Further, it was shown that defendant was operating under a franchise granted by Kansas City, and enjoyed a monopoly of the business of furnishing gas for light and fuel to its citizens.Among the provisions of the charter is one which gave to defendant"the right to shut off the gas from any consumer who may be in arrears for a longer period than fifteen days."The facts we have stated are those appearing in the record which are most favorable to the cause of action asserted and the determinative question we are called on to decide is whether or not they present a case which plaintiff was entitled to have submitted to the jury.

Defendant as a manufacturer and vender of gas under the provisions of a charter granted by the city, must be classed as a public service corporation and not as a mere trading or manufacturing concern.Whether or not the charter attempted to grant the exclusive privilege of using the public thoroughfares for the laying of gas mains and pipes, or whether or not the city could legally grant such exclusive privilege, the fact remains that the business of supplying the citizens of the municipality with gas for light and fuel, in its very nature, is a monopoly.Monopolies were odious to the principles of the common law, are still more hateful to the genius of republican institutions and their existence should be tolerated only in cases of necessity where the citizens whom they are designed to serve receive a reciprocal benefit from the grant equal to that bestowed on the corporation.As was well said by the Supreme Court of Indiana in State ex rel. v. Gas Co.,157...