Lead Opinion
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,
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 *144 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.
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,
Affirmed.
Addendum
On Rehearing.
The trial was had on count 1, in which it was alleged in substance that “the defendant was a public service corporation' and as such was engaged in f urnishing for a reward electricity for lighting and heating purposes to the public in the city of Bessemer, a municipal corporation,” and that defendant “was then and there operating as such public service corporation under a franchise” from said city. It was further alleged that defendant “was then and there under a contract with the plaintiff to furnish to plaintiff electricity on plaintiff’s premises at his residence” ; that “although he [plaintiff] has complied with all of his terms of said contract, the defendant has breached said contract” by its failure to “furnish said electricity to plaintiff on his said premises,' as it was the defendant’s duty to do under said contract”; and that, as a proximate consequence of said breach of said contract, defendant was greatly damaged and inconvenienced.
Defendant demurred, on the grounds “that it does not aver sufficient facts to show a duty on defendant to extend its service feed wires to plaintiff’s residence so that defendant could supply plaintiff with the service desired,” and that “no sufficient consideration for the «obligation of «the defendant was averred.”
During the first part of the nineteenth century all businesses, with the exception of callings such as those of common carriers and> innkeepers, were free from public control. Even though the business was affected with a public interest, those engaged therein were not obliged to serve all the public without discrimination, and might arbitrarily refuse service without assigning reasons. Wyman on Bublic Service Corporations, § 29. As enterprises developed and monopolies extended their influence, the advantages of combination became more apparent, and there arose a corresponding necessity for controlling the institutions which supplanted the former individual trader. It can no longer be questioned that public service corporations or companies are obliged to treat all members of the public that it has held itself out as serving fairly and without discrimination. Daughdrill v. Alabama Life Insurance & Trust Co.,
“There is no obligation to render service to a particular applicant until he puts himself in a proper position to demand that service. It is the law again which determines under what conditions the service company may properly be hold to respond to an application. In most services the law has made it plain what conditions there are as to time and place, method and manner. All these conditions must be performed by the particular applicant, though he be of the class to which the duty pertains, before a present duty is owed him, even though he wishes a service in respect to which there has been public profession of a general sort. Undoubtedly the most noteworthy example of these conditions which must be performed is the necessity of an offer of prepayment before any service will be due. Stated technically, the company rendering the service is therefore not in default until performance of ‘ the conditions precedent has been tendered. What conditions are thus insisted upon depend upon how the law has thought proper to safeguard all concerned.” 13 M. A. L. 33, 37.
It is necessary to consider what would be the proper action against a public service corporation for refusal or failure to serve an applicant entitled to service, and what the complaint should allege. Analogies have been drawn from the common-law action against a common carrier for failure to carry goods or passengers, or against an innkeeper for failure to receive a guest. • An action on the case was brought, alleging that:
“The defendant was a common carrier of goods for hire from A. to B., and that .the plaintiff tendered at the defendant’s place of business at a proper time certain goods of the plaintiff’s to be carried by the defendant, for reward, from A. to B., and was then ready and willing and offered to pay the defendant the proper reward in that behalf; yet the defendant, although he had means of carrying- said goods, would not receive and carry the same.” 2 Chitty, 488, and note; Pickford v. Grand Junction Railway Company, 8 Meeson & Welsby’s Exchequer Rep. 372.
As to innkeepers, see 2 Chitty, 531; Fell v. Knight, 8 Meeson & Welsby, 269.
Mr. Chitty, on this point, observes:
“With regard to nonfeasance, or neglect to perform a contract, not even an action of assumpsit, much less an action upon the case, can be maintained, if no consideration existed and be stated in the declaration to give validity to the defendant’s alleged obligation to do the act. Hyde v. Moffat,16 Vt. 271 . Therefore a count stating that the plaintiff retained the defendant, who was a carpenter, to repair a house by a given day, and the defendant accepted the retainer but did not perform the work, per quod the walls were injured, cannot be supported. Elsee v. Gatward, 5 T. R. 143. Where the count shows no consideration, no legal liability on the part of the defendant- to proceed with the work exists. There are, however, particular instances of persons exercising certain public trades by employment, who are *147 bound by law to do what is required of them in the course of their employment, without an expressed contract, and are in turn entitled to a recompense, and may therefore be sued in case, as for a breach of duty in refusing to exercise their calling.” 1 Cliitty’s Pl. (16th Ed.) 152, 153 (196, 197).
The case of Newton v. Brook,
“It is clear under tlie allegations of the complaint that the defendants were under no duty to perform the obligation, out of which their duty is alleged to have arisen, independent of a contract. In other words, no such duty, the breach of which is complained of, originated either in a general obligation of law or in an obligation thrown upon them by reason of their vocation. So then, if the duty of performance was upon them at all, it must have been imposed by contract. This being true, the contract must be a binding one upon them and this must be shown by the allegations of the complaint. To this end it is just as important to state expressly the consideration for defendants’ promise as if the action were in assumpsit.”
Thet case of Malone-Beal Co. v. Greer,
The case of McGowin Lumber & Export Co. v. R. J. & B. F. Camp Lumber Co.,
The case of Spencer v. Bessemer Water Works,
“Non constat, the refusal or failure to supply the water was due to plaintiff’s failure to perform his allegations.”
Had .the plaintiff in the Spencer Case, alleged facts showing that all conditions precedent had been performed by him, the court would have arrived at an opposite conclusion to that expressed in the observation: -
“No consideration for the contract is here alleged. Newton v. Brook,134 Ala. 269 [32 South. 722 ], But if it be said that the count shows a partial performance by defendant of the contract alleged, and therefore no consideration for it need be averred, it is not shown, except perhaps inferentially, that it was bind *148 ing upon the parties at the time defendant failed or refused to furnish the water.”
Of the distinction between conclusions of law and conclusions of fact, the Supreme Court of Minnesota (Curtiss v. Livingston,
“It is urged that the clause we have quoted from the complaint is a statement of a conclusion of law, and not an allegation of fact. [That clause was that the defendant, after the execution arid delivery of the lease to the lands in question, ‘succeeded to and became possessed of’ the interest of the grantors thereof.] ■ It is, for the purpose of pleading, rather a statement of an ultimate fact, or a conclusion of fact, based on or arrived at by several minor facts, and the rules of law applicable to them. This, to avoid prolixity, is sometimes not only permissible, but necessary, in pleading. Thus in ejectment, it is sufficient for plaintiff to allege that he is the owner and entitled to the possession, and that the land is wrongfully withheld, without alleging in detail the particular facts on which his claim of title is based, McClane v. White,5 Minn. 178 [Gil. 139 ]; Wells v. Masterson,6 Minn. 566 [Gil. 401 ]; Buckholz v. Grant,15 Minn. 406 [Gil. 329 ]; also that a mortgage was ‘duly foreclosed,’ without alleging particulars, Pinney v. Fridley,9 Minn. 34 [Gil. 23 ]; also, in an action to enforce a lien for taxes passing under the statute to a purchaser ■ at a void tax sale, that the taxes were ‘duly levied and assessed.’ Webb v. Bidwell,15 Minn. 479 [Gil. 394 ], So an allegation that a party ‘conveyed,’ or that he ‘contracted’ or ‘agreed,’' without detailing the particular acts which it is claimed resulted as a( conveyance, contract, or agreement, must usually be sufficient in pleading. Where the allegation is so indefinite that the opposite party may not be apprised of what is claimed, the court may, perhaps, on a motion to make more definite and certain, require a more full and detailed statement; but, as against a demurrer, a general allegation of an ultimate fact or conclusion of fact is sufficient.”
The New York court (Spies v. Munroe,
“In an affidavit, the evidence establishing a fact, and not a conclusion of fact drawn from the evidence, must be set forth, while a pleading need contain simply a statement of fact, and not the evidence to establish it. This distinction was pointed out by the presiding justice of this court, while sitting in the late general term, in Westervelt v. Agrumaría Sicula, Societa Anónima di Transporti Marittimi,58 Hun, 147 ,11 N. Y. Supp. 340 . lie said: ‘It is the office of the complaint to allege conclusions of fact adduced from evidence, whereas it is the office of the affidavit to set out the evidence establishing this conclusion of fact.’ ”
The following averments in a pleading have been held to be a sufficient allegation of fact: That an election was duly and legally held (People ex rel. Crane v. Ryder,
However, in an early case, this court said:
“One of the distinctions between case and assumpsit is that if the former action be brought on a breach or omission of duty growing out of a contract, the contract itself need not be formally stated in the declaration (1 Ch. Pl. 124, 335), unless it constitutes a material part of the plaintiff’s case. Bevan v. Jones, 6 D. & B. 483. Here the cause of action, as stated in the first count, is not on the contract of hiring, but for an omission of duty,, in not treating the slave with proper care while she was hired. The terms of the contract were entirely unnecessary, and whether the sfave was hired until Christmas, or until the first of January, could not affect the plaintiff’s right to recover, if during the time she was hired the defendant let her die for want of attention. Staddart v. Palmer, 3 B. & C. 2. The same rule holds as to the statement of the consideration of the contract.” Moseley v. Wilkinson,24 Ala. 411 , 415, 416.
In Jones v. Powell,
“We do not think that the declaration sets forth a valid or binding contract between the parties. It commences by stating that the defendant represented to the plaintiff that by removing with his family to Texas he would be entitled to 320 acres of land,, and that if plaintiff would remove to Texas with his family, ny water, that the defendant would pay his expenses, provided he would convey to the defendant one-half of the land to which he would be entitled. It is not stated that the plaintiff accepted this proposition, nor that he did agree to remove with his family to Texas. * * * In declaring on contracts, the declaration must show a binding agreement between the parties, which has been violated. If a valid contract Is shown, and the consideration is concurrent, that is, if the promise of the one is the consideration of the promise of the other to do a certain thing at the same time, the plaintiff must aver a readiness and willingness on his part to perform the promise.”
The foregoing statement of the rule is in line with the conclusion announced in McGowin Co. v. Camp Lumber Co.,
In Terrell v. Nelson,
The conclusion announced in Western Union Telegraph Co. v. Crumpton,
As an exception to this rule, Mr. Justice Tyson says of a complaint declaring for the partial performance of a contract:
“But if it be said that the count shows a partial performance by defendant of the contract alleged, and therefore no consideration for it need be averred, it is not shown, except perhaps inferentially, that it was binding upon the parties at the time defendant failed or refused *150 to furnish the water.” Spencer v. Bessemer Waterworks,144 Ala. 587 , 595,39 South. 91 ; Russell v. Bush,196 Ala. 309 , 315,71 South. 397 ; Will’s Gould on Pl. p. 230, and notes.
It results that any expression contained in Moseley v. Wilkinson,
The application for a rehearing is granted, the judgment of affirmance heretofore rendered in this court is set aside and vacated, and the judgment of said city court is reversed, and the cause is remanded to the circuit court, for the failure to sustain -the demurrer to the complaint in the respect indicated.
Reversed and remanded.