81 W. Va. 714 | W. Va. | 1918
The Spruce Lighting Company, successor of the Spruce Fork Company, corporations chartered and organized under the law of this state, and the Boone County Coal Corporation, an affiliated company, on May li, 1914 jointly owned a large boundary of coal lands located in Boone County and operated it through lessees to whom defendant furnished light and power from its electric light plant completed in June 1912 about three miles above Clothier where' plaintiffs were engaged in conducting a hotel on property owned by them. Having more current than was necessary to supply its lessees, defendant furnished part of the excess to plaintiffs and others convenient to its lines; but desiring to avoid the duties and
The first error assigned for reversal of the judgment entered upon the verdict for'$1000.00 is the action of the court upon the demurrer to the declaration and to each of its two counts, the second of which clearly conforms with the action, trespass on the case. The first count, it is argued, is for breach of contract; and a cursory examination seems to reveal an intention to rely on such breach. The count does aver a reciprocal contract to the effect that, for the service defendant engaged to render, plaintiffs were to pay eight dollars monthly and permit defendant to have the beneficial use of their water supply line. However, a more careful survey and analysis of the count, although it uses the words “agreed”, “undertook”, “promised” and “consideration”, the usual characteristics of an assumpsit, seem to disclose an intention on the part of the pleader to declare in tort. For, after setting out in detail an oral agreement for the service, performance of the reciprocal undertakings, mutually as-
It is contended further that the court below erred in permitting the plaintiffs to read in evidence their- complaint to the Public Service Commission and other portions of the proceedings had in connection with this complaint, to sustain the proposition that defendant was a public service corporation. It is unnecessary to decide this point since the testimony discloses that* electric service had been rendered for compensation to six or eight private domestic consumers, thus bringing defendant within the rule laid down in Wingrove v. Public Service Commission, supra. Whenever a corporation or natural person undertakes to .render to others services which by legislative enactment or judicial decision have been declared to be of the nature of public service, such corporation or natural person thereby submits to be governed by those rules and principles which are applicable to public service companies. Though the power of eminent domain is a frequent characteristic of a public sendee corporation, it is not a necessary one. Wingrove v. Public Service Commission, supra. So long, therefore, as defendant continues to serve some private domestic consumers, it must submit to be governed by rules applicable to such corporations.
It is well settled that a public service corporation may make reasonable rules and regulations governing its relations with patrons,'but this privilege is subject to the limita•tion that the regulations must not release it from any of the
The contract proposed by defendant was in part as follows: “It is expressly understood by the consumer that such power furnished for lighting of said hotel is simply supplied" •as an accommodation to the consumer and does not bind the producer in any way to furnish additional lights to the consumer or any other person ; it being understood that the business of the producer is that of furnishing electric power for the lessees’ mining operations.”
It is the duty of a utility to serve all who are reasonably •accessible and apply for service to the extent of their needs •and within the limits of its facilities. This duty, imposed by law, the proposed contract attempts to curtail. Defendant could not compel plaintiffs to sign it under threat of cutting off their service as its pleasure might prompt. Dittmar v. City of New Braunfels, 20 Tex. Civ. App. 293. It is unnecessary to consider whether such restriction of duty would be against public policy, for that question could not arise unless plaintiff had voluntarily signed the contract. So long as defendant continues to serve the public plaintiffs can require it to furnish as much current as they desire and are able to pay for, within the limits of its facilities, though they did refuse to sign the contract.
Having failed in that duty, what is the measure of damages that should be applied? The court below admitted testimony as to the loss in rental value and of prospective profits. But the injury here complained of was temporary in its nature, not permanent. In the case of McHenry v. City of Parkersburg, 66 W. Va. 533, the court in drawing the distinction between .permanent and temporary injuries, said: “Injury to real estate differs in nature and degree. Under some circumstances, recovery may be had from time to time as damages accrue. Under others, but one recovery can be had and that includes all the injury the property has sustained in the past, and will sustain in the future. Damages,
The application of the rule is more difficult than its statement. It is not necessary, indeed it is often impossible, to prove the quantum of damages with positive certainty. All that the law requires is reasonable, not absolute, certainty and we must now determine whether such requirement has been met by the proof adduced at the trial. Plaintiffs introduced no account books, ledgers or bank books in any form to show receipts and expenses. In order to prove loss of profits it is permissible to show what were the net profits for a definite period immediately preceding the severance of the electric light wires as a basis to show what they might have been during the period of such interruption of the service. St. John v. Mayor of New York, 13 How. Pr. 527, 532; State v. Friedman, 74 W. Va. 11. To do^ so, however, requires accounts showing receipts and expenses. If plaintiffs have been so lax in business methods as to keep no such accounts, they may not now avoid the consequences of their dereliction by permitting the jury to guess as to the amount of loss suffered, probably to the detriment of defendant.
Plaintiffs relied solely on estimates and calculations made
What the court said in the Miller case cited is peculiarly appropriate here: “We understand, that he (plaintiff) might not be able to fix with exactness his loss, but if he could not adduce evidence that would warrant a jury in fixing it to a reasonable certainty, that is his misfortune; it is no reason why a jury should be permitted to guess at the amount. He testifies, that while he burned gas his gross receipts except on Saturdays were $20.00 to $22.00 per day, and on Saturdays $65.00; that by lamp light.they were about half this; that the profit was sixty percent; from what he says, obviously, this was a guess on .his part; for he says he kept no book whatever; that he never put down his receipts .or expenses; that he kept no bank account;, that he put in his pocket whatever money came in; did not keep a bank account; he could not tell the .exact amount taken in any one day of the eleven months or in the month before the meter
Surely a jury has no more right to guess than has plaintiff; and our conclusion therefore is that while they may recover for their expense in securing the installation of the new electric service, they may not recover for the loss of prospective profits, havings failed to establish the latter to a reasonable certainty.
Of the seven instructions propounded by defendant, Nos. 1, 2 and 3 were given and 4. 5, 6 and 7 refused, and of the' refusal defendant complains. Number 4 was directed expressly to an item of $44.00 contained in the bill of particulars, described therein as “cash paid Boone Timber Company for additional equipment and repairs to motor in order to obtain electricity to light their hotel and post office for i5Yz months at $8.00 per month” thus combining expenses for asepair ;and the cost of service Avithout segregating repair feom. the service items. Chving to the ambiguity of the descriptive language used, it cannot be determined definitely whether it includes any charge except for the electric service jfurnished by the timber company. If it does not, then cer-7 bainly the instruction was proper because had defendant ffir--nished tke current for lights, the cost to plaintiffs would ..have been the same.
As instruction No. 5 relating to the sufficiency of the proof ■ to warrant the verdict and judgment for plaintiffs accords - with Avhat has been said upon that subject, it should have been (given. Number 6 was refused rightly because, while defendant as a public service corporation “had the right to make reasonable rules and regulations for the conduct of its busi
The reasons assigned require reversal of the judgment, annulment of the verdict and the remand of the case for a new trial, and such is the order directed to be entered here with costs.
Reversed, and remanded for new trial.