206 Pa. 254 | Pa. | 1903
Opinion by
In November, 1896, Miller, the plaintiff, became tenant of a house and lot in Wilkes-Barre, known as Farr’s Hotel. When he took possession the former tenant, when he left the premises, was in arrears on his gas bills to the amount of $15.73, which had been furnished by this defendant company; plaintiff himself during his occupancy in the month of November had incurred an additional bill of $9.02. He was willing to pay and offered to pay his own bill, but refused to pay the arrears of the tenant who preceded him. The defendant refused the offer
The defense was : 1. Defendant had a right to remove the meter because its charter imposed no obligation upon it to furnish gas to any particular individual, to whom it did not choose to furnish it. 2. It had a right to remove the meter in default of payment by the prior tenant. 3. Plaintiff had adduced no sufficient proof of any loss sustained by removal of the meter. 4. Plaintiff, on the evidence, is not entitled to recover for loss of profits in his business as damages for the removal of the meter.
There were other assignments of error, altogether thirteen in number, but as concerns this appeal the discussion of them can be embraced under these four heads.
As to the charter obligations of defendant, its duty to the public and to members of that public is so fully discussed in opinion by Judge Rice, Stern v. Wilkes-Barre Gas Company, 2 Kulp, 449, that it would be a mere repetition of his views for us to again go over that ground. He discusses in his opinion the obligations of this very charter and demonstrates clearly the result of his conclusions thus:
*257 “ When, therefore, the respondent was incorporated for the express purpose of supplying gas to the city, and such individuals residing therein as might desire the same, and for this purpose was given the right of eminent domain, we conclude that the legislature had a public purpose in view beyond, but not inconsistent with the respondent’s gain and profit; and that from the nature of the declared purpose for which it was created, taken together with, and explained by, the nature of the extraordinary privileges, which were granted to carry out that purpose, a legal duty is implied; and further that a resident of the city, coming within the conditions of the question stated at the outset, has a right such as can be enforced by mandamus.”
Therefore, defendant not only had the power under its charter to supply gas to the public, it also took on itself the obligation to supply it to the general public, and also, in the words of its charter, to supply it. “ to such individuals residing therein (that is in the borough), and in the immediate vicinity as may desire a supply of the same.” The defendant was bound to supply the plaintiff with gas if he desired the same. That he did desire it cannot be questioned ; that defendant refused to supply it cannot be questioned.
Can the refusal be justified on the second ground of defense? The prior occupant of the same premises owed $15.75 and defendant demanded that this amount be also paid or the meter should be taken out; plaintiff absolutely refused to pay this amount. That a municipality or corporation furnishing water or gas may by ordinance or by-laws make reasonable rules and regulations to insure the payment of bills, among others, that of stopping the supply unless all arrearages are paid, whether owing by the tenant in possession or his predecessors, has been settled: Girard Life Insurance Co. v. Philadelphia, 88 Pa. 393; Brumms’s Appeal, 22 W. N. C. 137. But there must be notice to, or knowledge of the incoming tenant of such rule. In case of a municipality the regulation must be by ordinance ; of this all have actual or constructive, notice. In case of a quasi public corporation such as this defendant, the regulation ought to be by resolution or by-law or at least by actual notice. The incoming tenant must somewhere be able to find out before he enters upon possession his liability. If by merely entering into possession
The next question raised by the assignments is as to the sufficiency of the proof of damages. The period that might be covered by the evidence is from December 26, 1896, when the meter was removed, to November 17, 1897, when this suit was brought, about eleven months. The verdict was for $2,500 or about $7.00 per day damages. There was nothing in the case calling for punitive damages; plaintiff could only claim to be made whole. What in money had he actually lost by the wrongful act of defendants, he was entitled to no purely speculative profits. Plaintiff’s evidence on this question seems to us somewhat vague, nor is the charge of the court so clear as to guard the jury from guessing at what ought to have been made reasonably certain. Nor does the learned judge himself seem very sure of his ground, for in his opinion on the motion for a new trial he says: “ I was not satisfied at the trial nor am I now satisfied that the plaintiff’s proof of the amount of damage sustained by him was clear and satisfactory as from the nature of the case ought to have been adduced.” In the charge he submitted the evidence to the jury, saying to them: “ If you should decide that plaintiff is entitled to recover in this case, the thing which has bothered me most as you evidently have noticed, is the question whether plaintiff has shown such clear specification of damage sustained by him on account of the turning off of his gas as under the law would warrant me in submitting the question to you.” The court, it seems, might well have been in doubt as to its duty in this particular. The plaintiff himself testified that the greater part of his profits accrued from sales of liquor at the bar; the substitution of lamps for gas burners would only change the kind of light; the customer would not necessarily be deterred from taking his drink because he must now swallow by the light of an oil lamp, whereas he formerly took it by the light of a gas jet.
We think there was no sufficient evidence to warrant the jury in assessing plaintiff’s supposed loss of profits _as damages and that when the learned judge instructed the jury that they might find for plaintiff on the evidence all damages which he had proven “ in a clear and satisfactory way” was error; for he had not proven in a satisfactory way any loss of profits;
We will not say that he is entitled to only nominal damages. If his expenses for lighting by lamps was greater, or his payment for services increased, his damages may be more than nominal, but they are not more by any sufficient evidence of loss of profits.
The tenth assignment of error is sustained; it is as follows : “ 10. The court is requested to instruct the jury: the plaintiff is not entitled to recover for loss of profits in his business. Answer: Refused.” This should have been affirmed; the judgment is reversed and a venire facias de novo awarded.