162 Ky. 478 | Ky. Ct. App. | 1915
Opinion op the Court by
Affirming.
This ease started in the Quarterly Court of Jefferson county. The water company filed a petition in that court seeking to recover from the warehouse company the sum of $177.47, claiming that it had furnished the Avarehouse company the quantity of water which, according to its rates, Avas of the value mentioned.
On motion the case was transferred to the Jefferson Circuit Court, and in due time a. reply was filed traversing all the allegations of the answer and counterclaim. With the issues thus joined, the case was tried and submitted to a jury and their finding was in favor of the water company for the amount claimed in the petition. On this appeal, the warehouse company asks a reversal upon the following grounds:
“1. That the court erred in refusing to allow the warehouse company to introduce in evidence its monthly water bills for six or seven months directly preceding the period in dispute.
“2. That the court erred in refusing to instruct the jury that if a bona fide dispute, based upon reasonable grounds, existed between the water company and the warehouse company as to the correctness of the bills rendered, the water company had no right to shut off the water from the warehouse company during this dispute.”
The following axe the facts out of which the controversy arose: The warehouse company used a hydraulic elevator in its tobacco house. The water by which the elevator was operated was furnished by the water company through a special meter, that is, a different meter from the one used to register consumption of water elsewhere about the plant. The tobacco house was several stories high, and the business was handling and storing tobacco on the various floors, so that it was very necessary to keep an elevator in service to move the hogsheads up and down as the occasion might require. The meter in use up to the time this trouble began was installed about 25 years prior thereto. The evidence for the water company shows that the meter was old and worn out and was not registering correctly. This fact
The bill for the first month after the new meter was installed, July 19th to August 19th, was $128.28, and it showed a water consumption of 1,063,656 gallons. For the next month the bill rendered was for $49.19' on a consumption of 342,548 gallons. These bills were so extraordinarily large that the warehouse company refused to pay them. They are the ones embraced in the petition filed in the quarterly court. The bill for the third month was down to “normal,” to use a term of the warehouse company; that is, for 39 days there was a charge of $11.52 on a consumption of 102,476 gallons. The warehouse company refused to pay the two large bills because it claimed they were excessive and erroneous. The last bill, $11.50, was settled some time before the suit was filed. Upon refusal to pay the two bills in question, and after notice, water service was cut off from the elevator by the water company. This was pursuant to one of its rules.
When the water company’s inspector read the new meter at the end of its first month’s service, it was noted that the registered consumption was unusually large. Four days later another inspector was sent to re-read the meter and verify the first.report. He ascertained, as he testified, that the first reading was correct,- and that, in addition, 17,600 gallons had been consumed in the four days between the two readings. The water company then, pursuant to a custom, sent written notice to the warehouse company that the amount of water shown to have been delivered through the meter was so large as to indicate a leak a,t some place in the warehouse service pipes or in the elevator. On August 19th, the bill for $128.28 was rendered. This, together with the warning of the leak, caused the warehouse company, on August 28th, “to have its plumbing and hydraulic elevator examined so that any needed repairs
Tbe warehouse company maintains that there was no leak in their service pipes or valves. It is contended that tbe trouble was in tbe new meter; that it was improperly adjusted when it was installed, and for this reason tbe excessive amounts were registered during tbe first two months. “Normal” registration in tbe third month is accounted for by argument that the new meter in course of time just settled down to good work, or was properly adjusted by tbe water company inspectors when they were making some of their frequent readings. Tbe water company contends that tbe new meter at all times registered correctly. To sustain this position, it relies upon tbe three or four inspections it caused to be made of tbe meter during tbe two or three months in question, and also tbe fact that as soon as the warehouse company renewed the valves in tbe elevator tbe registered water consumption was satisfac
The following instructions were given:
“1. If you believe from the evidence that the plaintiff, the Louisville Water Company, furnished to the defendant, the Louisville Tobacco Warehouse Company, from July 19th to August 19th, 1912, 1,063,656 gallons of water, and from August 19th to September 19th, 1912, 342,584 gallons of water, then the law is for the plaintiff and you should so find. But, unless you so believe from the evidence, then the law is for the defendant,- and you should so find.
“2. If you find for the plaintiff as against the defendant, you should award it the sum of $128.28 and the further sum of $49.19.
“If you find for the defendant you will award the defendant as against the plaintiff such sum in damages as you may believe from the evidence will fairly and reasonably compensate it for any loss of business growing directly out of the shutting off of the water by the plaintiff, the whole award not to exceed the sum of $1,000, the amount claimed in the’ counter-claim.”
But the warehouse company insists that the lower court misconceived the issue. Its contention is that, although the water company may have delivered the quantity of water registered by the meter, yet, if the quantity was so large and unusual as to raise suspicion, it constituted reasonable ground for resisting payment; and if, in fact, there was a bona fide dispute as to the correctness of the bill, then the water company, although the bill was correct, had no right to shut off water from the warehouse company during the dispute. The court refused to give the two instructions quoted below,, which appellant offered as embodying its view of the law:
“2. Even if you believe from the evidence that there was such a leak in the elevator as required the use of 1,063,656 gallons of water from July 19th to August 19th, and 342,584 gallons from August 19th to September 19th, yet, if you believe from the evidence that the defendant was disputing with the plaintiff as to the correctness, of the quantities of water and the bills rendered, and, furthermore, that such dispute was based upon reasonable grounds, the court instructs you that the plaintiff had no right to cut off the supply of water from the defendant’s elevator; and if you believe that the plaintiff did so cut off this supply of water, the law is for the defendant on its counter-claim, and you shall so find.
“4. If you believe from the evidence that at the time the plaintiff cut off the water from the defendant’s elevator the defendant was engaged in a bona fide dispute with the plaintiff as to the correctness of the water bills, and if you believe further that such dispute on the part of the defendant was based upon reasonable grounds, then the court instructs you that the plaintiff had no right to cut off the water from defendant’s elevator, and the law is for the defendant on its counterclaim and you shall so find.”
Public service corporations having the right of eminent domain, or exercising the use and occupation of
It must- be conceded, therefore, that a public water company may cut off its service for failure on the part of the consumer to pay the charges, that being a reasonable rule and regulation. Cox v. City of Cynthiana, 123 Ky., 363; 40 Cyc., 804. But we quite agree with counsel for the warehouse company that there is a limitation on this principle. For instance, a water company may not deliberately or erroneously make out an excessive hill, and, for failure of the consumer to pay it, cut off the service, without becoming liable for such damages as the consumer may sustain by reason of its arbitrary and wrongful action. The water company, like any other vendor of an article for public or private consumption, has recourse to the courts for the settle-' ment of disputed bills, but, in view of the fact that it does not choose its patrons, and it owes a service to the public, and all of the public are entitled to that service by paying for it, it is the generally accepted rule that in addition to having recourse to the courts, the water company may enforce payment of its lawful charges by shutting off the water from particular premises, and it may refuse to furnish water until its bills are paid. But, when it adopts the latter and more drastic remedy, it must be correct in the amount and manner of its demand. In a suit for damages resulting from shutting off the water, it is therefore competent to attack the correctness of the demand, and, if it is shown to be wrong, the water company should pay the damage which it has
On the other hand, the consumer has no right to demand continued service when he refuses to pay merely because he believes the bill is exorbitant, or because he in good faith disputes the correctness of it, even though there are reasonable grounds for the dispute. He has ample remedy to protect himself against extortion or damage or loss of service. As above stated, he may recover damages if it appear that he has been deprived of service for refusal to pay an unjust bill, or he may keep the service by paying under protest the bill rendered and sue to recover the excess, or he may execute bond and enjoin the water company from shutting off the service until the dispute is terminated.
In support of its position the appellant cites the following cases: South Carolina Pool v. Paris Mountain Water Co., 86 S. C., 436, 62 S. E., 874; Wood v. City of Auburn, 87 Me., 287, 36 Atlantic, 906; State v. Kinloch Tel. Co., 67 S. W. (Mo.), 648; Borough of Washington v. Washington Water Co., 62 Atlantic, 390 (N. J.); Benson v. Paris Mt. Water Co., 88 S. C., 351, 70 S. E., 897.
All of these cases were equitable proceedings for injunction or mandamus. They recognize the right of a consumer or municipality to resist the payment of an unreasonable price, or an excessive bill, and say that an injunction will issue to prevent the water company from terminating the service, or mandamus to compel the service. But, in such eases, where service is so coerced, the company is protected, for the complainant is under bond to secure the company in the payment of such rate and amount as may be determined proper in the course of legal proceedings.
We have reached the same conclusion entertained by the lower court, and that is, that there was but one question in this case, and that was whether the bill rendered was correct. The warehouse company elected to waive its right to mandamus.. It sued by counter-claim for damages. As before stated, we are of the opinion that the warehouse company did not show a right to recover damages from the mere fact that the dispute, so far as it was concerned, was bona fide. In a civil proceeding the party in error is not saved the cost and consequence of his error by a show of good faith. It had no right to recover unless the water company was in the
The next question comes from the refusal of the court to permit the warehouse company to introduce in evidence water bills for the six or seven months just preceding the period in dispute. These bills were made out from readings of the old meter. It is uncontroverted that the old meter was defective, if not dead, and that its registrations were incorrect. Nor is there any dispute about the fact that the bills made out after installation of the new meter were unusually large. That is, the charges for water consumed as shown by the new meter were excessive in comparison to the charges during the preceding year, or as gauged by what the elevator ought to consume.
Mr. Kremer, the chief assessor for the water company, and the first witness introduced by it, says, with reference to this first bill:- “There was a large excess over the preceding month!” Neither is there any dispute about the good faith of the warehouse company in contesting them. The bills for water service registered by the old meter could have demonstrated nothing more than the above conceded and uncontroverted facts.' We do not believe it was error to reject them under the circumstances of this case.
For these reasons the judgment of the lower court is affirmed.