State ex rel. Graff v. N. O. Lighting Co.

2 Teiss. 269, 1905 La. App. LEXIS 54

• Court: Louisiana Court of Appeal
• Decided: April 19, 1905
• Docket: No. 3661
• Status: Published

Opinions

DUFOUR, J.

IRelatrix seeks by mandamus to compel respondent to furnish her gas for both lighting and fuel purposes upon her paying therefor at the customary rates.

She alleges that she had up to October 20th, 1904, at her residence, 417 South Dupre St., a gas meter which, on that day, was removed without cause by the respondent, and that the latter refuses to furnish her with a gas meter and a gas supply.

Respondent justifies the removal of the meter on the ground that it had been tampered with and injured, and asserts that rela-trix forfeited her right to demand the use of any gas meter unless the damage alleged to have caused was paid for.

It is also averred that the application made for a meter after the removal was withdrawn and has never been renewed.

The salient pertinent facts are substantially as follows:

Relatrix lived on Montegut streets, and used gas there; she then moved to her present residence, to which place the mains of the respondent had not yet been extended. The extension was made at the solicitation of an agent of the company, who obtained gas contracts from the residents, in the number, the relatrix.

A written application signed “Miss Graff” was. given by the solicitor to the company, and on the strength of it, a prepaid meter was installed at her residence. The solicitor says, he thinks she signed the application, but she denies having done so; but she used the gas for fuel until the removal of the meter.

The prepaid meter is an automatic instrument which, upon the dropping of a coin, passes gas as required to the extent of the value of the coin. The damage complained of was of a nature which, according to respondent, enabled the consumer to withdraw the coins that had been inserted after the gas had been used.

The relatrix insists that she did not tamper with the meter, and the inspector insists that he found it damaged. It is admitted, however, that the withdrawal of the coins would not affect the reading of the meter, which would still show how much gas had been used, and would still afford a proper basis for the charge.

It is further shown that no disparity has ever been found between the amount of money she put in and the value of the amount of gas she consumed.

The respondent is a quasi-public corporation, holding a franchise giving it the exclusive right to vend gas, and compelling it to furnish the same to all parties who may choose to contract for it.

It is undeniable that the company has the right to protect itself by enacting reasonable stipulations in the contract, but it is equally true that it must have due regard for the rights and convenience of the consumer.

The regulations contained in the application, that the meter may be changed, if found defective, and that the subscriber “will insure the company against loss of the meter or injury thereto by carelessness and accident and will deposit with the company from time to time such sums of money as may be required as continuing •security for the performance of the obligations of the subscriber, are reasonable.

But nowhere do we find any warrant for refusing a new meter ■or shutting off the gas because the defendant or its employees ex parte decide that the meter has been injured, when the consumer denies that she was guilty of any fault. The question of damage vel non and its extent is one which neither party can decide alone, and which must be solved by a proper investigation, judicial or non-judicial as the parties may elect.

To insist upon pre-paj'ment of alleged damage as a condition precedent to continuing the gas supply is unjust, arbitrary and oppressive, and such a claim will not be tolerated by a Court.

The charter of the respondent does not clothe it with judicial authority to decide its own claims in its own favor. Audi alteram partem is of the essence of fair dealing.

If we accept the theory that Miss Graff signed the application referred to in the answer, there is a contract, and respondent, under its terms, could not refuse meter and gas without violating it, until the validity of its claim was established. If, on the other hand, we accept the theory that there was no contract, relatrix could be held for the damage to the meter only by virtue of Art. 2315, R. C. C., and the rules or customs of the gas company cannot properly be injected into the matter.

The relation of the user of gas by sufferance and without contract with the company would necessarily be akin to that of a stranger to a contract who committed a trespass, so far as concerns the company's right to redress.

It is stated by respondent that the rules require a written application, and that the one presented in behalf of the relatrix by her brother after removal of the meter , was subsequently withdrawn. Conceding this, the testimony satisfies us that the new meter was not denied for lack of application, but because she refused to pay the amount of damage to the old meter, which she denied having caused.

This is conclusively shown by the statement of Miller, manager, who testifies as follows:

“Q. Do I understand that your company refused to furnish gas to Miss Graff, even though she would make a deposit to get an ordinary meter?

April 19th, 1905.

“A. Unless she would acknowledge the indebtedness caused by that damage, we will persist in refusing to supply her gas, unless she would admit that liability, which would come from the deposit.

“Q. And yóu wóuld refuse to give her even an ordinary meter ?

“A. 'Refuse any kind óf a meter, unless the obligation existing was recognized.”

Such a declaration amounts to duress and shows that any renewal of application by relatrix would have been a vain and futile act when she became advised of respondent’s determination.

At the argument, a suggestion was made that we had no jurisdiction in the premises,' the allegations of the petition are that petitioner has been damaged to the extent of $400.00, and we are not warranted in the assumption that deprivation of the use of the meter did not injure her to an extent commensurate with at least the minimum limit of our jurisdiction in appeals from the District Court.

In accordance with the foregoing views and with the precedent-in Kells vs. N. O. Gas Light Co., we shall render such a judgment as will protect the respective rights of the parties.

Judgment appealed from is reversed, and it is now ordered that respondent, upon application in the usual form by relatrix, do furnish meters and gas for both lighting and fuel purposes upon the usual terms, and without pre-payment by relatrix the amount of damage claimed by respondent for injury to the removed meter, and leaving suoh claim to be settled in proper proceedings contra-dictoiiiy taken, costs of both courts to be paid by respondent.