181 Wis. 611 | Wis. | 1923
The plaintiffs alleged that they were engaged in conducting a meat market and grocery store and were users and consumers of electricity in their place of
The complaint further alleges that the defendant justified its conduct by the claim that the plaintiffs were guilty of stealing electrical current during the four-year period and refused to re-install the service unless the sum of '$750 should be paid, that being the amount claimed by the defendant company to be due.
The complainants further allege:
“That the said plaintiffs have been, and now are, ready, willing, and able to pay to the defendant for all current or electricity used by them if the meter of said defendant was inaccurate and did not correctly measure the amount of electricity actually used by them, but the said defendant, through its agents and officers, refused to- give any basis for its claim of $750 and subsequently offered to take $375, as a condition of the replacing of such meter and the furnishing of electricity to the plaintiffs.”
There were other formal allegations. Pursuant to an order to show cause the defendant company was required by order dated September 25, 1922, to furnish the plaintiffs service pending a final determination of the action upon the same terms and conditions as it is furnished to other inhabitants of the city of Kenosha, and as a condition of the making of said order the court required the plaintiffs to execute a bond in the sum of $1,000, with sufficient sureties, conditioned that the plaintiffs would pay for all electrical service furnished by the defendant company to the plaintiffs and pay the customary charge for discontinuing and reinstalling the service to the plaintiffs in the event it should be finally adjudged that the defendant did not wrongfully
“That the plaintiffs wrongfully, unlawfully, and intentionally so tampered with said meters by inserting foreign substances therein and in various other ways that the meters failed to register the amount of electricity consumed by the plaintiffs. That the defendant company was deceived and misled by the acts of plaintiffs and submitted bills to the plaintiffs computed at the customary rates according to the meter readings, but erroneous in amount because of the wrongful and intentional acts of the plaintiffs in tampering with the meters as above set forth. That the plaintiffs did pay the bills so rendered, but' at the time of such payments well knew that such bills were incorrect because of their own wrongful and unlawful acts in so tampering with said meter.
“That upon investigation, on or about the first of April, 1922, the defendant became suspicious that something was wrong with the mode and method of registering electricity at the premises of the plaintiffs because of the fact that the electric bills seemed small considering the fact that plaintiffs were operating an ice machine run by a two horse-power motor, a meat grinder driven by a one horse-power motor, and also an electric light load aggregating 2,650 watts. That in order to determine definitely whether or not the electricity furnished at the premises of the plaintiffs was being properly measured and paid for according to the schedules of rates filed, the defendant installed a tested check meter on one of their poles outside of the premises and allowed the meter in the premises to continue as it was. That in approximately four months’ operation the check meter showed a consumption of 3,222 kilowatt hours, while the meter in the premises showed a consumption of 651 kilowatt hours, which would make a difference in the bills of the plaintiffs, over and above that already paid by them on the erroneous measurement of electricity above set forth, of not less than $205.68.
*615 “That the defendant then demanded of the plaintiffs that they pay for the electric light and power furnished them, and for which they had not paid, on the basis of an estimated bill covering the four-year period, figured according to the electric light and power actually paid for and the electric light and power which would ordinarily and customarily be used on a premises such as that owned by the plaintiffs where such an electric light and power load was installed, and based also on the amount of electricity consumed during the four months the electricity was correctly measured. That the plaintiffs refused to pay the estimated bill, whereupon the service was discontinued and the plaintiffs informed that before the service would be re-installed they must not only pay the estimated bill for service wrongfully consumed and not paid for, but also the cost of disconnecting and reconnecting the service, which would amount in all to about $750.
“That the plaintiffs refused to pay said bill or any part thereof, and have not paid for the electric light and power consumed by them at the schedule of rates on file with the railroad commission of Wisconsin.
“That it is the usual practice and custom of the defendant, in all cases involving disputes with its customers as to the amount due the defendant under the schedule of rates filed with the railroad commission and in cases of theft or other irregularity, to submit said disputes to the railroad commission for investigation and settlement if said disputes cannot be adjusted between the parties. That in all cases of unpaid balances due for service consumed the service has been discontinued and not reconnected until the amount due the company has been paid together with the cost of disconnecting and re-installing and certain other requirements have been met. That the controversy between the plaintiffs and the defendant as set forth in the pleadings herein was handled by the defendant company under its usual custom and practice.
“That the acts of the defendant and its entire conduct in this matter is entirely within the provisions of the public utilities law, and is a matter purely within the jurisdiction of the railroad commission.”
The defendant also alleges that the court was without jurisdiction for the reason that the railroad commission had
Upon the filing of the answer the plaintiffs moved:
“Upon the pleadings of this action, the complaint of the plaintiffs, and the answer of the defendant, for judgment that the injunctional order heretofore entered be made permanent.”
The defendant objected to the granting of the motion and offered to prove the allegations set forth in its answer. The motion of the plaintiffs was granted ánd thereupon final judgment was entered.
The motion for judgment upon the pleadings raised the question of whether or not the facts alleged in the answer were sufficient in law to constitute a defense to the cause of action set out in the complaint. While the answer contains evidentiary matter which should not appear in a pleading, it did contain allegations setting up new matter, and by the provisions of sec. 2667, Stats., these allegations are deemed denied. There was therefore an issue of fact. In some jurisdictions it is held that under such circumstances a motion for judgment upon the pleadings should not be entertained. 14 Stand. Ency. of Procedure, 928, and cases cited. But where' the plaintiff’s claim is admitted by the answer and no facts are alleged which if established would defeat it, the plaintiff may properly have judgment upon the pleadings. Kuhn v. Sol. Heavenrich Co. 115 Wis. 447, 91 N. W. 994; Wiesmann v. Donald, 125 Wis. 600, 104 N. W. 916; 15 Ruling Case Law, p. 579, § 13; Mills v. Hart, 24 Colo. 505, 52 Pac. 680, 65 Am. St. Rep. 241.
In determining whether or not the facts set up in the answer constitute a defense to the plaintiff’s cause of action all the averments of the answer must be taken as true. 14 Stand. Ency. of Procedure, 949, and cases cited.
The allegations contained in the pleadings of the moving party must be disregarded where they are in conflict with the allegations contained in the pleading of the opposite
Inasmuch as there must be a trial of the action, the second contention of the defendant, which is that the court has no jurisdiction, should be noticed. It was held in the case of Campbell v. Milwaukee E. R. & L. Co. 169 Wis. 171, 170 N. W. 937, that the reasonableness of a rule established by a public utility for the conduct and management of its business should be first determined in a proceeding before the railroad commission. While this is true, when rules are once established the parties may properly appeal to the courts to vindicate their rights in respect thereto. It should not be forgotten that the judicial power is under our constitution vested in the courts and that it cannot by act of legislature.be withdrawn from the courts and conferred upon an administrative body. When reasonable rates and rules or regulations have been established, the enforcement of rights of parties in relation thereto presents matters which are properly a subject for judicial inquiry. Waukesha Gas & E. Co. v. Waukesha M. Co. 175 Wis. 420, 184 N. W. 702.
The plaintiffs allege in this case that they have not unlawfully converted electrical current to their own use. The defendant alleges that they have. The court very properly provided that pending the determination of this dispute the defendant should continue to furnish service. If upon the trial it shall ^appear that the plaintiffs have unlawfully converted current to their own use, to the damage of the defendant, the rights and obligations of the parties are to be determined in accordance with the rates and rules of service established. This is a pure judicial question and involves the exercise of judicial power. Nor do commissions
The case of La Crosse v. Wisconsin-Minnesota L. & P. Co., ante, p. 151, 194 N. W. 47 (decided June 5, 1923), is not applicable to this case.
By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.