51 Ga. App. 919 | Ga. Ct. App. | 1935
Lead Opinion
The judge erred in dismissing the petition on general demurrer. In his opinion on rendering that judgment he construed the action as one ex contractu; and if this construction be true, in view of the fact that the petition did not state damages appropriate to such action, the judgment of dismissal was proper. However, with due respect'to the opinion of the judge, we, in attempting to reach a conclusion on the exceptions brought to this court, have been unable to agree to this construction. The petition alleges that the defendant was a public-service corporation, the custom appertaining thereto, its duties as such, and damages sus
The petition alleges that plaintiff resided, sometime before the tort complained of, at No. 383 7th St. N. E., Atlanta, Ga., and that at that place petitioner became indebted to the defendant for gas furnished in the sum of $25.75; that subsequently thereto he moved
The defendant is a public-service corporation. As such, as is universally held, it is bound to furnish gas to all members of the municipality in which it operates, who will comply with its reasonable rules and regulations. Lawrence v. Atlanta Gas-Light Co., supra, and cit. It may be safely stated that the right of a public utility to require a reasonable deposit as security for the payment of service to be rendered is generally recognized as reasonable. “That the company may enforce a regulation exacting payment in advance in reasonable amounts or requiring the deposit of security is fully settled by the authorities.” The reason for the legality of such a rule is that “the company is bound to furnish gas on application, and it is but just that it be not compelled to supply unknown and irresponsible persons therewith without assurance in some form that it will receive compensation.” 12 R. C. L. 893. As was stated in Southwestern Telephone Co. v. Danaher, 238 U. S. 482 (35 Sup.
The defendant contends that it had a right to demand the additional deposit of $25, which it states was reasonable, and that it had a right to shut off the supply of gas upon the failure of plaintiff to comply with its demand. We are of the opinion that if this increase in deposit of $25 was bona fide requested in accordance with a reasonable rule and regulation to exact payment in advance, or as security in advance in a reasonable amount for the future consumption of gas under the present contract, the defendant would not be violating its duty, and the exercise of this authorized right, whether done maliciously or not, would not make the defendant liable. On the other hand, if the additional deposit of $25 was required, not in accordance with a reasonable rule and regulation, but arbitrarily in order to coerce the defendant into paying the old bill arising under a separate contract at a former residence,—that is, if the defendant when he received the $25 additional advance deposit was intending to credit it on the old account against the wishes of the plaintiff, the defendant would be violating its duty to the plaintiff.
Other headnotes need no elaboration. We think the statements of fact in the petition, which are taken as true on demurrer, were sufficient as against a general demurrer. The court erred in sustaining that demurrer.
Judgment reversed,.
Dissenting Opinion
dissenting. The petition, properly construed (most strongly against the plaintiff), attempts to set out an action ex contractu. None of the items of special damages sued for being recoverable in such an action, and the petition containing no prayer for general or nominal damages, the court did not err in dismissing the case on general demurrer.