Wisconsin Power & Light Co. v. Berlin Tanning & Mfg. Co.
| Decision Date | 07 May 1957 |
| Parties | WISCONSIN POWER & LIGHT CO., Appellant, v. BERLIN TANNING & MFG. CO., Respondent. |
| Court | Wisconsin Supreme Court |
On December 10, 1953, Wisconsin Power & Light Company commenced action against Berlin Tanning & Manufacturing Company to recover for public utility gas service.
The complaint alleged in substance that from May 17, 1951, to September 18, 1953, plaintiff furnished public utility gas service to defendant; that plaintiff installed a meter on defendant's premises; that the meter has a front accumulative indicator or index; that the reading on the index when multiplied by 1000 equals the number of standard cubic feet of gas used; that the words 'front index multiplied by 1000' appear on the meter open to visual inspection; that in addition to a fixed charge of 75cents per month, the applicable schedule of rates provides a charge for the number of hundreds of cubic feet used per month; that in order to compute the charge, the reading on the meter must be multiplied by 1000 and then divided by 100 in order to compute the number of hundreds of cubic feet and that the same result is reached if the meter reading is multiplied by 10; that during the period covered by the complaint the meter was read by plaintiff's employees; that the readings were not multiplied by 10 and that in rendering monthly bills the plaintiff billed the defendant for 1/10th of the number of hundreds of cubic feet actually furnished; that as soon as the mistake was discovered the plaintiff called the attention of the defendant to it; that the defendant refused to make payment of the balance; that the correct billing for gas furnished was $26,361; that the defendant had paid the sum of $3,440.79 and that the balance owing to the plaintiff was the sum of $22,920.21; that plaintiff's schedule of rates was on file at all times with the public service commission and that a copy was at all times on file in the office of the plaintiff at Berlin in such form and place as to be readily accessible to the public.
The defendant served an answer and counterclaim. It admitted the furnishing of gas service but alleged 'that defendant does not have sufficient knowledge or information upon which to form a belief as to the allegations relating to operation of the plaintiff's gas meter, or the method of interpreting the reading therefrom, therefore denies the same and puts plaintiff to its proof thereof.' Similar allegation and denial were made as to the schedule of rates, the filing thereof and as to the computation of monthly charges for which the defendant was billed. As a setoff and counterclaim the defendant alleged that by reason of contract and statutory obligations as a public utility, the plaintiff was required to read its meter and compute its charges correctly; that it did bill the defendant at monthly intervals and the defendant paid the bills submitted; that the amount of charges for gas service represented a basic and substantial cost to the defendant in the operation of its business and in the determination of prices and charges to be made by the defendant for merchandise and services sold and furnished to its customers so as to permit the defendant to operate its business at a profit; that defendant relied upon plaintiff and its employees to perform their duties in expert and careful manner; that if in fact the amounts of the monthly charges were incorrectly computed and billed, the amount of the deficit is attributable solely to the negligence of the plaintiff; that defendant has no means of recovering the amount thereof from its own customers; that an operating loss exactly equal to the amount of the deficit will result to the defendant 'which defendant claims as a setoff and counterclaim against any amount which may be found to be due and owing to the plaintiff in this action;' that the defendant entered the amounts of the monthly statements rendered upon its books of account; that during June 1953 the defendant agreed to and subsequently purchased certain shares of its own capital stock; that the purchase price was computed and paid upon the basis of the book value of the shares as they appeared from the defendant's books of accounts; that the book value of defendant's stock would have been correspondingly reduced if the plaintiff had made timely demand for the increased charges; that by reason of plaintiff's negligence, defendant was caused to pay an amount of approximately $10,000 in excess of the true book value of its stock; that defendant has no recourse to recover such excess from the seller of the stock and claims $10,000 as a setoff and counterclaim against any amount which may be found to be due and owing to plaintiff. The answer alleges as an additional affirmative defense that plaintiff should have discovered its error within the second billing period after May 17, 1951; that if the error had been discovered and due notice given to defendant, defendant would have been afforded opportunity to determine whether plaintiff's gas service should be continued in defendant's operations; that accumulation of the deficit is attributable solely to inexcusable delay and laches on the part of the plaintiff in discovering its alleged error.
Plaintiff demurred to the defendant's counterclaim upon three grounds: First, that it appears on the face thereof that it does not state a cause of action, secondly, that the cause of action stated in the counterclaim is not pleadable as a counterclaim and third, that it does not state a defense. Plaintiff demurred to the affirmative defense set out in the answer on the grounds that it does not state a defense.
Plaintiff thereafter moved for summary judgment. In support of the motion, it presented an affidavit of its attorney which in general set forth plaintiff's position with respect to the various pleadings in the action but did not set forth any evidentiary facts and an affidavit of plaintiff's president that he believes that there is no defense to the action but not setting forth any evidentiary facts. The defendant filed no affidavits in opposition to the motion for summary judgment. On September...
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