49 Ga. App. 444 | Ga. Ct. App. | 1934
Lead Opinion
W. J. Lawrence filed suit for damages against tbe Atlanta Gas-Light Company. The defendant company filed both general and special demurrers to the petition, which were sustained, and the action was dismissed. To this judgment he excepted. .His petition, after alleging the necessary jurisdictional facts, alleges: “That prior to July, 1930, your petitioner resided at No. 378 McDonough road, S. E., in the city of Atlanta, said county, and that he maintained at said place a home and household fully furnished, and that the members of his family consisted
Counsel in the case differ as to the nature or character of the action brought, that is, whether the petition sounds in tort or in contract. We might say at the outset that we are of the opinion that the petition is one ex delicto. The defendant is a corporation with “full power and authority to make, manufacture and sell gas, to be made of coal, rosin, or other materials, for lighting the streets, public and private buildings, and other places in the City of Atlanta,” and “authorized and empowered to lay down in any and all of the streets, lanes, avenues, alleys, squares and public grounds of said city, gas-pipes and other apparatus for conducting gas through the same, and to erect therein such gas-posts, burners and reflectors as may be necessary or convenient.” Ga. L. 1855-6, p. 420. See also charter amendment adopted in 1889 (Ga. L. 1889, p. 1398), empowering the defendant company to make, furnish, and sell gas and electricity for all uses to which it may be put advantageously, and further authorizing and empowering it to lay pipes and conduits, and to erect poles and to run wires, either above or below the surface of the street, as may be desirable. It is undoubtedly true that, as a general rule, no one is compelled to do business with any one that he does not choose to do business with. There are, however, well-recognized exceptions to this rule. “Gas companies, being engaged in a business of a public character, are charged with the performance of public duties. Their use of the streets, whose fee is held by the municipal corporation in trust for the benefit of the public, has been likened to the exercise of the power of eminent domain. Accordingly, a gas company is bound to supply gas to premises with which its pipes are connected. It may, however, impose reasonable conditions.” 2 Beach, Private Cor. § 835 d. In Gibbs v. Consolidated Gas Co., 130 U. S. 396 (9 Sup. Ct. 553, 32 L. ed. 979), the court said as to the character of a corporation like the one here under consideration: “The supplying of illuminating gas is a business of a public nature to meet a public necessity. It is not a business like that of an ordinary corporation engaged in the manufacture of articles that may be furnished by individual effort.” In Richmond Natural Gas Co. v. Clawson, 155 Ind. 659 (58 N. E. 1049, 51 L. R. A. 744), the court said, in considering a case similar to the one at bar: “The Richmond Natural Gas
The case of Haugen v. Albina Light & Water Co., 21 Or. 411 (28 Pac. 244, 14 L. R. A. 424), was an action for writ of mandamus to compel the defendant corporation to supply the plaintiff with water. It was shown that the corporation was operating under a franchise granted to it by the city of which the plaintiff was a resident, and that it had the authority to lay its pipes in its streets for such purpose. The court, in a very lucid discussion of the nature and character of the corporation, said: “From this statement of the case, as presented by the pleadings, the court below held that, when the defendant entered upon and laid down its water mains in the street, in pursuance of the privileges granted by the ordinance, it became bound to supply every abutter upon the street with water. The contention for the defendant is that the ordinance does not impose the duty upon it to furnish water, but only, if it shall furnish water, that the charge therefor shall not exceed a certain sum herein specified; that the grant is to lay pipes through the streets for the purpose of conducting water through the city in the mode prescribed, and so as not to interfere with the construction of sewers; but that it contains no provision requiring it to
We think that what was said in Shepard v. Milwaukee Gas Light Co., 6 Wis. 539 (70 Am. D. 479), clearly explains the relation of a gas'company to the public. It was there said: “It is within the everyday experience of us all, and hence within the judicial knowledge of the court, that the manufacture and supply of inflammable gas for the purpose of lighting, [heating] cities, stores, and dwellings is not a domestic or family manufacture. It is carried on either by public or associated capital, and is dependent for its profit upon general consumption. Corporations of this kind are not like trading or manufacturing corporations, the purview of whose operations is as extensive as commerce itself, and whose productions may be transported from market to market throughout the world. Their product is designed for the consumption of the immediate community in which the manufacture is wrought. It is not a trading corporation, for its products depend exclusively upon home consumption.”
However, without regard to these salutary principles, we do not believe that the petition could be construed as sounding in contract. A careful reading of the petition will disclose that the plaintiff does not allege, with reference to the home for which the gas was refused, that he made or signed any contract with the de
Moreover, although a contract may be declared upon, if the action is not based on a breach of a specific provision of the contract, but the wrong consists in the violation of some duty merely incident to or arising out of a contract, the complainant is entitled to elect as to his remedy. Lipscomb v. Watkins, 28 Ga. App. 185 (110 S. E. 502). No specific provision of any contract is alleged to have been breached by the defendant; no contract is set forth or attached to the petition. Therefore, we think, under any view of the ease, the petition should be construed as seeking damages for the breach of duty imposed by law upon the parties in consequence of their relation.
One item of damage alleged by the plaintiff in his petition was the loss of the services of his wife. He alleged that “at the time said defendant cut off said gas his wife had a severe case
Plaintiff alleged, as his other, element of damage, “that it was necessary for him, in order to obtain facilities for cooking his meals and heat for household purposes, to purchase an electric stove for the sum of $160 and make a contract to be supplied with electrical power, and by reason of this fact he was damaged in and to the sum of $200.” The Civil Code, § 4502, provides as follows: “Damages are given as compensation for the injury done, and generally this is the measure where the injury is of a character capable of being estimated in money. If the injury be small, or the mitigating circumstances be strong, nominal damages only are given.” The function of the jury in this connection is to award
Even in the absence of legislative authority, the general rule is that a corporation, having for its purpose the furnishing to the general public of gas, water, etc., operating under a franchise granted by the State, may adopt reasonable rules and regulations for the collection of accounts, and a rule providing that the gas, water, etc., will be cut off and discontinued until all arrearages are paid is reasonable and will be enforced. Dodd v. Atlanta, 154 Ga. 33 (113 S. E. 166); Royal v. Cordele, 132 Ga. 125 (63 S. E. 826); Macon Gas Light & Water Co. v. Freeman, 4 Ga. App. 463 (61 S. E. 884). However, in order that a gas company may legally cut off gas from a consumer for failure to pay a bill, it must be shown that there is a statute, charter provision, or a regulation giving it such authority; and in the absence of one of the three, such company has no authority to cut off the consumer’s supply of gas. Dodd v. Atlanta, supra. And further, where there is a valid subsisting statute, charter provision, or regulation authorizing such company to cut off the supply of gas upon failure to pay for gas furnished, and there is a dispute in good faith on the part of the consumer either as to the amount due or his liability therefor, the gas company can not shut off the supply of gas. Dodd v. Atlanta, supra. While, under the allegation of the petition that the plaintiff denied owing the account claimed by the defendant (which on general demurrer is to be taken as true), the defendant had no legal right to cut off the gas, and, while there appears no statute, charter provision, or regulation authorizing the defendant to do so on failure
We do not think any of the special grounds of demurrer sustained are of particular merit. The demurrer to the allegation in paragraph 5, that “in due course of time said defendant presented petitioner with a final bill which petitioner paid,” as not being sufficiently specific as to when, what amount, and in what manner the bill at such address was paid, has some merit, and the judgment is reversed, with direction that the plaintiff be allowed, before the remittitur of this court is made the judgment of the lower court, to amend by making more specific this allegation; otherwise the judgment will be affirmed.
Judgment reversed on condition.
Rehearing
Counsel for defendant in error filed his motion for rehearing, contending that the opinion rendered in this ease is in certain respects ambiguous. We welcome the opportunity to clarify our opinion. Nothing said therein is in conflict with the decision in Dodd v. Atlanta, 154 Ga. 33 (supra), but this court intended to follow the ruling there made. We held that even in the absence of legislative authority, a corporation of the character of the defendant company may adopt reasonable rules and regulations for the collection of accounts, and that “a rule providing that the gas, water, etc., will be cut off and discontinued until all arrearages are paid is reasonable and will be enforced.” We did follow this by saying: “However, in order that a gas-company may legally cut off gas from a consumer for failure to pay a bill, it must be shown that there is a statute, charter provision, or a regulation giving it such authority; and in the absence of one of the three, such company has no authority to cut off the consumer’s supply of gas.” This we thought was the ruling made in the Dodd case, as it will be noted that we cited that case as authority for the above statement. We did not mean to hold, as counsel puts it, “that there must be a legislative regulation or charter provision giving the gas company the right to refuse service,” but did intend to hold that there did not inhere, in the fact that a gas bill of a consumer was in arrears, a right of the gas company to discontinue its service, but that it must show one of three things, (1) legislative authority, or (2) a charter provision, or (3) a regulation adopted by itself as a rule of the company, in order to avail itself of this right. Nor did this court intend to hold that this particular company did not have one of the three requirements above set out. Counsel contend that from the allegations of the petition (construing the petition most strongly against the pleader), this court should hold that the defendant-company did have such a rule or regulation, and therefore had the right to discontinue its service. We do not think it necessary to so hold. Even though the defendant did have the power, through one of the three modes already pointed out, to cut off the supply of gas upon failure to pay for gas furnished, yet where “there is a dispute in good faith on the part of the consumer, either as to the amount due or his liability therefor, the gas company can not shut off the supply of gas.” See original opinion. Peti
Dissenting Opinion
dissenting. The bill of exceptions recites as follows: “To the petition the defendant interposed its demurrer, general and special, and upon a hearing thereon the court passed an order sustaining the general and all special demurrers and dismissing his case. To this order and judgment W. J. Lawrence [the plaintiff] then and there excepted and now excepts to the same and assigns error thereon and says that the said order and judgment is contrary to law and that the court should have overruled said general demurrer.” (Italics mine.) The exception, properly construed, is to the judgment on the general demurrer only. Error is not “plainly and specifically” assigned upon the ruling sustaining the special demurrer, as is required by paragraph 1 of section 6140 of the Civil Code of 1910. There being no sufficient assignment of error upon the judgment sustaining the special demurrer, that ruling can not be reviewed by this court, and it has become the law of the case, and since no amendment to cure the defects in the petition pointed out by the special demurrer was offered by the plaintiff, the trial judge did not err in sustaining the general demurrer and dismissing the case.
