Citizens Gas & Fuel Co. v. Warden

McMahan, J. Complaint by appellee to recover damages on account of the freezing of certain fruits and vegetables by reason of the wrongful removal by appellant of a gas meter and the wrongful shutting off of the supply of gas in appellee’s place of business. Appellant’s motion to make the complaint more specific and its demurrer to the complaint being overruled, the issues were closed by a general denial. The cause was tried by the court without a jury, and resulted in a finding and judgment in favor of appellee for $322.79. This appeal follows the overruling of appellant’s motion for a new trial. The errors assigned relate to the action of the court in overruling the motion to make the complaint more specific, in overruling the demurrer, and in overruling the motion for a new trial. There is no merit in the contention that the court erred in overruling the motion to make the complaint more specific. In so far as the ruling on the demurrer is concerned, it is sufficient to say that the record discloses that a fair trial was had upon the merits, and that, without objection, evidence was introduced covering all the alleged defects in the complaint. In such *184 cases, the overruling of a demurrer to a complaint is not reversible error. This case comes to us after a second trial, and we are asked to reverse the judgment on the grounds that the decision is not sustained by sufficient evidence, and is contrary to law. In support of this contention, appellant says the evidence shows there was an abandonment of the contract by appellee, that he acquiesced in the removal of the meter, that the evidence is not sufficient to show that the removal of the meter was the proximate cause of the alleged damages, and that there is no evidence showing the removal of the meter was wrongful. The evidence shows that on January 30,1917, and for a period of five years prior thereto, appellant was and had been furnishing gas to appellee for the purpose of heating the basement of his warehouse, wherein he kept and stored fruit and vegetables. The bills for gas were rendered and payable by the week. The meter in appellee’s basement was read January 29, 1917, and a bill for $3.20, the amount due for the preceding week, was left at appellee’s place of business. Appellant had an established rule authorizing the removal of a meter upon failure to pay gas bills when due. Appellee paid the gas bill for the week ending January 29, 1917 on the morning of January 30, 1917. The meter was removed from appellee’s place of business about the middle of the afternoon of that day, and after the bill had been paid in full. It was removed by Wesley Williams, an employee of appellant, who, about a half hour before removing the meter, met appellee in the street, where the two held a short conversation. The evidence is conflicting as to what was said by the parties. Williams testified that he asked appellee if he had paid “last week’s gas bill,” and that appellee replied that he had not, and, in response to a question as to whether he *185 was going to pay it, he said “no,” that he then informed appellee that his orders were, in case he did not get the money, to remove the meter, that appellee said, “use your own pleasure,” and turned around and left the witness. Appellee testified that when Williams asked if he had paid his gas bill, he replied, “see your bookkeeper”; that Williams did not say to him that he had orders to remove the meter if he did not pay the bill; and that he, appellee, did not tell Williams to use his own pleasure; that he told him to see his bookkeeper. Appellee further testified that he went to the bank, and, when he returned to his place of business, between four and five o’clock that afternoon, he found the doors to the basement open, the gas meter removed, the gas disconnected, and that the heat was all out of the basement, the temperature outside that evening being about 30 degrees. There were 103 bunches of bananas stored in the basement, which became chilled and were unfit for sale and had to be thrown away. A small quantity of sweet potatoes, lettuce and green onions was also damaged because of the cold. Appellant concedes that appellee had paid his gas bill in full prior to the removal of the meter, but insists that appellee, by his conduct and conversation with the witness Williams, acquiesced in the removal of the meter, and that such acquiescence amounted to an abandonment of the contract. In arguing this contention, appellant ignores the testimony of appellee and relies entirely upon the testimony of Williams. This contention of appellant cannot be sustained in view of the testimony of appellee. Appellant also contends there is no evidence showing the existence of any contract requiring appellant to continue furnishing gas to appellee, and that there is no evidence to show that appellant was a public service corporation upon whom the law imposed the duty of continuing to fur *186 nish appellee a supply of gas. While no witness in so many words testified that appellant was a public service corporation, and, as such, was under an obligation to furnish gas to appellee, the evidence is sufficient to sustain a finding in appellee’s favor on this question. The evidence discloses, without dispute, that, for at least 18 years, appellant had been in the business of furnishing gas to various customers. One witness testified that he had been in the employ of appellant for that length of time and that, during that time, he had been engaged in setting meters, taking them out, and making collections. Another witness testified that he was and had been the secretary and treasurer of appellant company for more than 11 years; that appellee’s attorney called him at about 11 o’clock the next day after the meter was removed and told the witness that the meter had been removed and that there had been some damage to appellee’s stock, at which time the witness stated that, if the meter had been removed and the bill had been paid, they would be glad to put the meter back at once; that, shortly thereafter, he told appellee that appellant would be glad to put the meter back; that he did not issue the order to remove the meter; that Boaz was a meter reader and collector, and had collected this bill, but had not reported its payment; that appellee had $5 on deposit with appellant to guarantee the payment of final bills upon the removal of the meter; that there was not anything due appellant at the time the meter was removed; and that, if it had known the bill had been paid, the meter would not have been removed. Appellant had adopted rules concerning the removal of meters upon failure to pay bills when due, and there is evidence tending very strongly to show that, on another occasion, appellee had to resort to court to enjoin the removal of the meter and the cutting off of the gas in his place of business. *187 Without entering any further into the details of the evidence, it is, in our opinion, sufficient to justify the court in drawing the inference that appellant was a corporation engaged in the business of furnishing gas to the public as a public-service corporation, and that the shutting off of the gas was unlawful. Appellant also contends the evidence was not sufficient to justify the court in finding that the shutting off of the gas was the proximate cause of the damage suffered by appellee. The bananas in question were stored in a basement where the necessary plumbing to heat it by gas had been installed, the fixtures for that purpose having been purchased from appellant. There was no flue in the building. The basement was divided into three rooms, one of which was used for the storage of bananas partially ripened, the others for storing green stuff. These rooms were lined with paper in order to retain the heat, and were connected by doors which were kept shut. The room in which some of the bananas were placed for ripening purposes was kept at a temperature of from 65 degrees to 70 degrees. Part of the bananas were kept in another room where the temperature was about 55 degrees. A drop in the temperature sufficient to chill these bananas would cause them to turn black and to render them unsalable. The evidence shows that appellant’s employees, when they removed the meter, left the doors in the basement, including an outside door, open, and that, when appellee returned to his place of business, the temperature in the basement was so low that the bananas had become chilled. Appellant says appellee should have gotten oil stoves and put in the basement so as to have prevented the bananas becoming chilled. The evidence is sufficient to justify a finding that the bananas were chilled before appellee learned the meter had been removed. Without any further *188 discussion of the evidence, we hold it is sufficient to sustain the finding. Judgment affirmed.