Birmingham Ry., Light & Power Co. v. Littleton

77 So. 565, 201 Ala. 141, 1917 Ala. LEXIS 89

• Court: Supreme Court of Alabama
• Decided: May 10, 1917
• Docket: 6 Div. 534.
• Status: Published

Opinions

THOMAS, J.

In the instant case the trial was had on count I, in which it was averred that defendant contracted with plaintiff to furnish electric current to the latter’s residence, No. 1431 Dartmouth avenue, in the city of Bessemer. The count was not subject to the demurrer directed thereto. It was averred by way of implication, as a consideration, that the defendant, for a" reward, was furnishing to the public electricity for the purposes of lighting and heating, and that under contract it engaged to furnish plaintiff at his residence such current for lighting.

The action being for a breach of the contract — and not in assumpsit or for the breach of a duty growing out of a contract — the cases of Newton v. Brook, 134 Ala. 209, 32 South. 722, Spencer v. Bessemer Water Works, 144 Ala. 5S7, 39 South. 91, Malone-Beal Co. v. Greer, 169 Ala. 534, 53 South. 810, and B. R. L. & P. Co. v. Abbott, 6 Ala. App. 643, 60 South. 970, have no application. The averment was not that the defendant promised and undertook to furnish the current. If it had been, then, under the foregoing authorities, it would have been necessary to specifically aver the consideration for the undertaking. The averment was that defendant contracted with plaintiff to furnish electric current at his residence, and that it failed to deliver the same as per contract. If the suit had been ex delicto for the breach of a duty growing out of the contract, it would have been necessary to aver the consideration. The distinction between actions ex contractu and actions ex delicto is clearly pointed out in Wilkinson v. Moseley, 18 Ala. 288, and it has since been adhered to by our court. Tucker v. Mobile Infirmary, etc., 191 Ala. 572, 575, 68 South. 4, L. R. A. 1915D, 1167.

Defendant pleaded in short by consent the general issue, with leave to give in evidence any matter which would be “admissible in evidence if well and properly pleaded.”

The trial court submitted to the jury two elements of recoverable damages: (1) Inconvenience to plaintiff in the use of his residence, because of defendant’s failure to furnish electric current; (2) the expense plaintiff incurred in “wiring” his residence for the reception of such current.

The evidence tended to show that at the time in question the defendant, a public service corporation, was engaged in furnishing to private consumers in the municipality of Bessemer, for a reward, electric current for light and heat, under the reasonable rules and conditions of the company and in consonance with law; that plaintiff’s residence which was sought to be lighted was located within the corporate limits of Bessemer and within the service radius of defendant; that plaintiff (through his wife) made application in writing to defendant for electric current to be furnished for said residence, and made the required cash deposit as per the terms of the application prescribed by defendant. Said application for electric current contalined, among f other stipulations, the following:

“The company shall deliver electricity át a point outside of the premises designated by the company’s representatives. All wiring from the point so designated, all interior wiring and all electric equipment on the premises shall be at consumer’s expense, and ail electric equipment (including wiring), or any changes therein, shall at all times meet the requirements of the city authorities or the Southeastern Underwriters’ Association, and the company may cut off the current supply, without notice, at any timé such wiring does not meet such requirements. All electrical equipment on the premises shall be furnished by and at the consumer’s expense, and the company shall not be liable for damage to person or property due to the installation, maintenance, or operation of any electrical equipment on the premises, other than damages occasioned by the company’s willful neglect or default. Nothing herein contained is a guaranty by the company of a constant supply of electricity, and the company shall not be liable in any way to the consumer for interruption in service. * * * The commencement of service by the company at the premises shall be an acceptance by the company of this application, which shall thereupon become a contract between the company and the consumer. Either party may terminate .such contract on three (3) days’ notice to the other party, given as hereinafter provided. * * * No promise, agreement, or representations of any agent or employé of the company shall bind the company unless expressly incorporated herein.”

After the application was made, investigation by defendant’s agent revealed the fact that an extension of the service wires was necessary in order to reach plaintiff’s premises. A diagram (made a part of the record) showeel that defendant’s nearest line, or service pole supporting the same, was 115 feet distant from plaintiff’s residence, which residence was located on thel comer of Dartmouth avenue and Eifteenth street, and that defendant’s line and service poles extended from Sixteenth street west to within 115 feet of Eifteenth street.

For the defendant, the witness Stone explained the relative location of plaintiff’s residence and the necessary extension of the service as follows:

“I made the diagram, it is correct. * * * The nearest pole to Mr. A. J. Littleton’s house is 115 feet. * * * Mr. Littleton’s house is right down in the corner” of Dartmouth avenue and Eifteenth street. “The distances there are in proportion, about four poles to a block and all about the same distance.”

The distance over which the secondary wire was to be extended was 115 feet, in direction due west from the last of the three service poles then. standing along the north side of the alley or street, and from Sixteenth to Fifteenth street.

Defendant’s evidence tended to show further that after plaintiff applied for electric current defendant sent a Mr. Leopard to make the connection; that he found insufficient pole line (as above indicated) with which to reach the house with the service, and reported the fact to the office, and that thereafter the company sent him “to explain to Mrs. Littleton what the trouble was.” Witness said:

“I told her we could not reach her from where the pole was at the present time; that there would have to be some arrangements made to set some poles in there to where we could reach her, and if she wanted to come down and make that arrangement with the company to handle it. it was all right, and if she didn’t, we would return her deposit she made for the meter. She decided to take the money, and I gave the money to her and she signed a petty cash voucher for it, and I returned it to the office.”

That application for the service was first made on December 9th, and the money returned to Mrs. Littleton on the next day. That Mr. Littleton came to defendant’s office on tiie 14th of December, and “wanted to know if we [the defendant] were going to furnish the service” applied for to his residence. On December 16th, the request was made by defendant to its construction department for estimate and authority to place the necessary pole, and make the extension of the secondary wire to connect with plaintiff’s residence. In response -the requested estimate was completed, and approval by that department was given on December 23, 1915.

The evidence was to the further effect that plaintiff made demand on defendant for immediate service on December 15, 1915, offering to repay therefor the meter fee theretofore returned by defendant’s agent to plaintiff’s wife, which offer was declined by defendant, because coupled with the demand by plaintiff for immediate service. Thereafter, and before Christmas, plaintiff employed counsel, who communicated with defendant immediately as to its failure to furnish the electric current applied for to said residence.

Defendant’s evidence further tended to show that it notified plaintiff and his counsel of its willingness and readiness to install the service line and furnish the current. However, this .was not done, or had not been done at the date of the trial, which was-March 30, 1916. Suit was brought on January, 31, 1916.

It was without dispute that about half a day would be required to go out from Birmingham and place the necessary pole whereon to extend the required service wires.

[1, 2] Under the circumstances of-the case, it was defendant’s corporate duty, within a reasonable time after plaintiff’s due application and compliance with its reasonable regulations in that behalf, to extend its lines and comply with the application. Failing in this duty or contract obligation, defendant was liable to such purchaser, or prospective purchaser, of current, for the proximate pecuniary loss caused by such failure, and, in addition thereto and in connection therewith, the jury were authorized to consider, as an element of recoverable damages, the inconvenience and annoyance to which plaintiff was subjected by being denied, or deprived of, such current, within the terms of the contract. Birmingham Waterworks Co. v. Ferguson, 164 Ala. 494, 51 South. 150; Birmingham Waterworks Co. v. Watley, 192 Ala. 520, 68 South. 330; N., C. & St. L. Ry. v. Yarbrough. 194 Ala. 163, 69 South. 582. That is to say, the failure to furnish current to, plaintiff’s residence was a physical inconvenience and annoyance flowing immediately from the breach of the contract, if a contract existed, within the contemplation of the parties as a probable and proximate result of its breach, -which, when coupled with proof of pecuniary loss, formed an item of recoverable damage. Central of Georgia Railway Co. v. Sanders, 9 Ala. App. 632, 636, 64 South. 190. Under the evidence, no error was committed in the refusal of the requested charges to the effect that annoyance was not an element of recoverable damage.

[3] The certificate of the city electrician was competent evidence, tending to show that plaintiff had complied with the contract obligation exacted by defendant to make ready his premises for the reception of the current in order that defendant might not be subjected to expense or responsibility on that account.

[4] The court having instructed the jury that there could be no recovery for loss of time in trying to get the installation consummated, no reversal should be had for the admission of evidence, against the objection of defendant, tending to prove that plaintiff had lost three days’ time in the effort to get the light installed. This element of damage was eliminated by the general charge of the court.

[5] The cost of wiring plaintiff’s dwelling for reception of the current was a pecuniary loss, if, when ready, he was denied the supply by defendant’s failure to discharge its contract. There was no error in that part of the oral charge excepted to, nor in the refusal of defendant’s written charge No. 3.

[6] Under the evidence the question of rescission was for the jury, and no error was committed by the trial court in the refusing of charges on this point that invaded the province of the jury. So the several affirmative charges requested by defendant were properly refused.

[7] At defendant’s request the court instructed the jury in writing that if there was a contract between plaintiff and defendant for electric current, then, after xfiqin tiff’s demand for the service and his compliance- with the reasonable requirements of him, the defendant had a reasonable time within which to extend its equipment or service lines in order to furnish such service, and no error was committed in refusing the several subsequent written charges to the same effect, requested by defendant.

[8] Under the evidence touching the negotiations between the parties for the current, the question of the existence vel non of a contract was one for the jury. If such a contract was found to have existed and continued to exist, then what was a! reasonable time which defendant should have been allowed to connect plaintiff’s dwelling with its system was a question likewise for the jury.

We have examined the refused charges in connection with the court’s oral charge and the charges given at defendant’s request, and find that the law of the case was fully and fairly submitted to the jury.

The motion for a new trial was properly denied. Nashville, Chattanooga & St. Louis Railway v. Crosby, 194 Ala. 338, 70 South. 7. The judgment of the city court is affirmed.

Affirmed.

ANDERSON, C.-J., and MAYFIELD and SOMERVILLE, JJ., concur.