Bromer v. Florida Power Light Co.

Jun 3, 1949
Versions:45 So. 2d 658
13 A.L.R. 2d 1227
1949 Fla. LEXIS 1452

Lead Opinion

Affirmed.

TERRELL, THOMAS, SEBRING, and HOBSON, JJ., concur.

ADAMS, C.J., and CHAPMAN and BARNS, JJ., dissent.

Dissenting Opinion

It is my view that the amended declaration states a cause of action. A public utility is liable for damages resulting from its failure to perform its contract. See Mugge v. Tampa Water Works Co., 52 Fla. 371, 42 So. 81, 6 L.R.A., N.S., 1171, 120 Am.St.Rep. 207; Woodbury v. Tampa Water Works Co., 57 Fla. 243, 49 So. 556, 21 L.R.A., N.S., 1034; 43 Am.Jur., 586-591, pars. 22 to 32. A contract to supply electrical current or power is not only binding, but may and must be performed according to its terms and the proper construction thereof, unless there is a sufficient excuse for non-performance, and where one party fails to perform without adequate excuse, he is liable for damages. Contracts for electric supply may be implied. 29 C.J.S., Electricity, § 26, 541-542, and footnote citations; Volume 20 Corpus Juris 332-340; 29 C.J.S., Electricity, §§ 25-28.

The several elements of damages claimed are not ruled upon but may be ruled upon by the trial court. I would reverse the judgment and require the defendant below to plead.

ADAMS, C.J., and BARNS, J., concur.

Dissenting Opinion

The question before the court is whether the plaintiff-appellant‘s declaration states a cause of action.

The gravamen of the plaintiff‘s alleged cause of action must be gathered from the following allegations of the declaration, to-wit:

“The defendant Florida Power Light Company was a public utilities corporation and was possessed of a public franchise which permitted and required it to furnish to those members of the public in Dade County, Florida, desiring it, electrical energy at rates fixed and prescribed by law, and the defendant was engaged in the business of furnishing such electrical energy to said members of the public of Dade County, Florida, for which it was paid a sum of money in accordance with the prescribed rates. On said date the plaintiffs were engaged in the business of purchasing meats and perishable foods for purposes of resale and, in order to preserve and protect the meats purchased by the plaintiffs for such purpose, they constructed on the premises located at No. 1101 N.W. 22nd Street, Miami, Florida, storage rooms and a storage plant in which they intended to store meat purchased by them which was to be resold. The said storage plant constructed by the plaintiffs was equipped with new electrical machinery and motors which were to be employed and utilized to chill the temperature in the storage rooms to a sufficiently low degree as to insure the preservation and protection of the meats stored by plaintiffs therein. The plaintiffs requested the defendant to furnish to them sufficient electrical energy to operate and maintain the plaintiffs’ refrigeration plant and the defendant agreed on said date so to do. The said request was made in writing upon the usual and normal application of the Florida Power Light Company and was in words and figures as follows: `The undersigned requests Florida Power Light Company to render electric and/or gas service as set forth in this contract and agrees in consideration thereof to receive from and pay Florida Power Light Company for all electric power, energy and/or gas required on the premises at the address above written and at subsequent addresses designated by the undersigned in accordance with said company‘s present or future rates, rules and regulations applicable to such service, for so long as the undersigned occupies or controls said premises and requires electrical power, energy and/or gas thereon, but not for longer than five (5) years from the date hereof unless continued for a like period or periods by the continued rendition of service and use thereof beyond the expiration date of any such period. The undersigned hereby grants to the company, and without cost to it, all easements over the premises necessary for the rendering of service hereunder‘, and the said application was orally accepted by the Florida Power Light Company and the said company orally agreed to furnish the electric energy required as aforesaid. The machinery employed by the plaintiffs was of ample capacity to maintain such a low degree of temperature in said cooling plant and storage rooms as would fully protect and preserve the meats to be stored therein. Before connecting the electrical energy under said agreement, the defendant inspected the machinery to be employed by the plaintiffs and at the time it connected the current to said machinery under said application and agreement as aforesaid, the said defendant knew the purpose for which said electrical energy was to be utilized, and it knew the nature and character of the machinery that plaintiffs employed to accomplish the chilled temperature necessary to preserve and protect the meats to be stored in said storage room. The defendant, at the time it undertook and agreed to furnish said electrical energy, knew that the machinery employed by the plaintiffs required 220 voltage of electrical energy in order for it to operate efficiently and it knew that when said voltage of electrical energy was supplied to said machinery the said machinery would sufficiently chill the temperature as to protect the meats stored in said storage room, and the defendant also knew that, if the voltage of electrical energy to be supplied by it were permitted to fall below 200, the said machinery would operate with such inefficiency that the storage rooms would not be chilled sufficiently to preserve and protect the meats stored therein. The defendant by its agreement undertook to furnish said voltage required and the plaintiffs agreed to pay the prescribed rates for said electrical energy. Thereafter, the defendant connected its lines, wires or conduits with the machinery of the plaintiffs and commenced to furnish the said electrical energy. After an inspection of the operation of said machinery, it was found that the machinery chilled the storage rooms to a point of 13° below zero when supplied with the agreed electrical energy of 220 voltage and said degree of temperature was sufficiently low to adequately protect and preserve the meats to be stored in said storage rooms. After a test operation of said storage rooms and after it was found that the said machinery chilled the temperature of said storage rooms to 13° below zero when furnished with electrical energy of 220 volts, the plaintiffs stored in said storage rooms 100,000 pounds of prime grade A meat. On or about, to wit, the 1st day of December, 1946, the defendant failed to furnish electrical energy of a voltage in excess of 200 volts, as required as aforesaid, and, as a direct and proximate result of the defendant‘s failure to furnish said electrical energy of a voltage in excess of 200 volts, the machinery utilized by the plaintiffs as aforesaid was unable to chill the storage rooms to a sufficiently low temperature to protect and preserve said meat and without any opportunity on the part of the plaintiffs to protect themselves from such failure of the defendant as aforesaid, the temperature in said storage rooms rose to a point where the said meats spoiled and became unfit for human consumption.”

It is my conclusion that the declaration, although not a suitable model, does not fail to state a cause of action and that the judgment appealed should be reversed.

CHAPMAN, J., concurs.

Addendum

On Rehearing

This is an appeal from a final judgment rendered upon a demurrer to an amended declaration by the Circuit Court of the Eleventh Judicial Circuit, which amended declaration was filed by the appellants Charles Bromer, Ben Levin and Shirley Levin, a co-partnership formerly trading and doing business as Chief Frozen Products, against the appellee Florida Power Light Company. The lower court concluded that the appellants’ amended declaration for breach of contract failed to state a cause of action, sustained the appellee‘s demurrer thereto, and rendered final judgment thereon. The appellants did not allege an express contract to furnish any particular amount of electrical current continuously. Apparently they contend that an implied contract imposing that duty should be held to exist between the parties because the appellee ascertained by inspection and tests the exact amount of electrical energy needed by the customer at the premises in order to operate appellants’ cooling plant, or cold-storage plant, and after such ascertainment the appellee connected the current and began supplying it.

The first question in this case is not whether a contract for electric supply may be implied for, unquestionably, it may, but it is, on the other hand, a question of the scope and effect which should be given to such alleged implied contract. By this we mean whether the allegations of the amended declaration necessarily or in any event give rise to an implied contract to furnish 220 volts of electrical current continuously and in any and all events. This interrogatory begets the further query whether the appellants should be required to allege and show negligence on the part of the appellee, or whether the appellee should have the burden of pleading and establishing that it was not negligent but failed to furnish a continuous 220 voltage current by reason of some unanticipated event or an act of God.

A consideration of the former question necessarily involves a study of the obligations, duties and responsibilities of the appellee to each and to all of its other customers, for it might not be reasonable or practicable for it to discharge its alleged continuing duty to supply not less than 220 volts to the appellants without being guilty of discrimination. However, it would seem that the appellee should be held duty bound to furnish the amount of electricity which it has known from the beginning of negotiations would be needed by the appellants “if, by reasonable and practicable diligence and care under all the existing circumstances and conditions, it can do so without discrimination against other customers. Public service corporations cannot give to particular customers special favors to the detriment of others. They must treat all customers alike.” Humphreys v. Central Kentucky Natural Gas Co., 190 Ky. 733, 229 S.W. 117, 120, 21 A.L.R. 664. In other words, if any implication is to be drawn from the relationship of the parties as alleged in the amended declaration it is an implied obligation to exercise reasonable care rather than one to furnish 220 volts of current continuously and in any and all events. Guardian Trust Deposit Co. v. Fisher, 1906, 200 U.S. 57, 26 S.Ct. 186, 50 L.Ed. 367; Watson v. Inhabitants of Needham, 1894, 161 Mass. 404, 37 N.E. 204, 24 L.R.A. 287; City of Huntingburg v. Morgen, 1928, 90 Ind. App. 573, 162 N.E. 255, 163 N.E. 599.

It is our view that a greater burden should be placed upon a plaintiff who relies upon an implied contract than one who uses reasonable care and foresight in protecting himself by means of an express contract. To hold otherwise would be to encourage loose dealings and place a premium upon carelessness. This Court should determine and give to the alleged implied contract “the effect which the parties, as fair and reasonable men, presumably would have agreed upon if, having in mind the possibility of the situation which has arisen, they had contracted expressly in reference thereto.” 12 Am.Jur. 766.

Can it be said under the circumstances alleged in the amended declaration and upon a consideration of the duties and responsibilities which the appellee owes to its other customers that we should presume it would have entered into an express contract (if, indeed, it lawfully could have done so — a point which we do not decide, but see Woodbury v. Tampa Waterworks Co., 1909, 57 Fla. 243-249, 49 So. 556, 21 L.R.A., N.S., 1034; Demeter Land Co. v. Florida Public Service Co., 1930, 99 Fla. 954, 128 So. 402; Chicago Alton Railroad Co. v. Kirby, 1911, 225 U.S. 155, 32 S.Ct. 648, 56 L.Ed. 1033, Ann.Cas. 1914 A, 501; Railway Exchange Building, Incorporated, v. Light Development Company, 1937, 341 Mo. 334, 107 S.W.2d 59, 21 P.U.R.,N.S., 104) which would have required it to furnish to the appellants an electrical current of 220 volts continuously and in any and all events? We think not.

We cannot agree that the implication contended for by the appellants should be considered as one of the terms of the contract “because * * * [it is] necessarily involved in the contractual relationship so that the parties must have intended * * * [it] and * * * only failed to express * * * [it] because * * * [it is] too obvious to need expression.” 12 Am.Jur. 766.

No public utility corporation should be required to become an insurer by virtue of anything less than an express contract on its part to assume such responsibility and obligation. Certainly this is true unless such corporation is, at least, given an opportunity to refuse to enter into such a contract or to fix a higher rate for its service in the nature of a premium and/or compensation to it for the untold and otherwise uncompensated expenditures [such as the cost of establishing and maintaining an emergency or “booster” plant or system] which would be entailed were it to enter into a definite contract requiring such unusual responsibility and assumption of risk.

To presume that the appellee would have entered into such an express contract or that it impliedly did assume such risk is a “postulate so egregiously erroneous” as to tax the credulity of the most naive of modern business men.

We are not unappreciative of the fact that our conclusion places a real burden upon the appellants, but initially they had it within their power to have avoided such burden by demanding an express or written contract which might or might not have contained the obligation which they now contend should be implied. A greater burden should rest upon one who relies upon an implied contract under circumstances similar to those of this case than upon one who used that ordinary judgment and care which a prudent business man should have exercised.

We hold, in a suit of this type against a utility company for damages resulting from an alleged breach of an implied contract, the obligation or duty of the utility company under such implied contract is to use reasonable care and that the burden is upon the plaintiff to plead and prove negligence on the part of the defendant.

The judgment is affirmed.

TERRELL, THOMAS and SEBRING, JJ., concur.

ADAMS, C.J., CHAPMAN, J., and BARNS, A.J., disse