Barrett v. Broad River Power Company

The opinion of the Court was delivered by Mr. Justice Beease. Action, or, more properly, several actions on tort, growing out of the disconnection and discontinuance of the plaintiff’s electric light service by the defendant. The trial was in the Court of Common Pleas for Richland County, before Plon. J. K. Plenry, presiding Judge, and a jury. From a verdict and judgment for the plaintiff, for both actual and punitive damages, the defendant appealed to this Court. The plaintiff instituted four separate suits against the defendant, in the same Court, and about the same time. Each charged torts, commencing on the same day, in practically the same manner, and concerning the same premises of the plaintiff. The gist of the several complaints (the numbers used being to designate the respective actions and not paragraphs in one action) was this: *93 “First: That ‘the defendant and its agents negligently, carelessly, recklessly, willfully, maliciously, and unlawfully trespassed thereon and disconnected and discontinued the electric service of the plaintiff, the plaintiff having forbidden the said defendant and its agents to disconnect and discontinue his said electric service.’ “Second: ‘The defendant and its agents after having been by the plaintiff first forbidden to do so entered on the premises of the plaintiff and willfully, maliciously, and unlawfully trespassed thereon and disconnected and discontinued the electric service of the plaintiff, the plaintiff having forbidden the said defendant and its agents to disconnect and discontinue his said electric service.’ “Third: That ‘the defendant negligently, carelessly, recklessly, willfully, and unlawfully discontinued the electric service of the plaintiff. That the plaintiff has made demand upon the defendant and its agents to restore his electric service which was unlawfully discontinued as aforesaid, but the said defendant has negligently, recklessly, wantonly, and willfully refused to connect and restore the said electric service of the plaintiff as aforesaid.’ “Fourth: That ‘the defendant and its agents negligently, unlawfully, recklessly, wantonly, and willfully entered the premises of the plaintiff and discontinued his electric service. .That since the discontinuance of the said electric service of the plaintiff as aforesaid he has made repeated demands of the defendant and its agents to restore his said electric service, but the said defendant and its agents have negligently, wantonly, carelessly, recklessly, and willfully refused to restore the electric service of the plaintiff aforesaid.’ ” The defendant filed answer in each of the four cases. It set up a general denial and — “alleged that the furnishing and discontinuance of plaintiff’s electric service were in accord with the rules and regulations of the defendant and rules and regulations promulgated or approved by the, Railroad Commission of South Carolina, and also in accordance with con *94 tract between plaintiff and defendant, and further that defendant’s entry upon plaintiff’s premises was in pursuance of a right granted defendant in writing on January 19, 1925, and duly recorded in the Clerk’s office for Richland County; and in each of, the cases the answer further set up that another action was pending between plaintiff and defendant upon the same cause of action.” The defendant moved, after notice, that all of the cases be consolidated and tried together, upon the ground that they all arose out of the same transaction and that defendant was entitled, in order to avoid a multiplicity of suits, to a trial of all the actions together. The motion for consolidation was granted as to three of the cases, Nos. 1, 2, and 3, but refused as to the fourth case. Such refusal forms the basis of one of the exceptions. As to the consolidation of actions, Ruling Case Taw says this: “It is a common practice to consolidate actions pending in the same Court that might have been brought in one action, the purpose of the consolidation being to prevent a multiplicity of suits. Formerly it was considered that a Court of Chancery had no power to consolidate causes pending therein, but the rule at the present day is the same in equity as at law. Independent of statute the power of consolidation has been exercised with the greatest freedom, according tQ the will of the particular Judge before whom the actions consolidated have been pending, to' subserve the interest of the parties and the public. * * * The consolidation of actions is not, in the absence of statute, a matter of right, but rests in the sound discretion of the Court, and its discretion will not be interfered with unless abused. The actions sought to be consolidated must be pending in the same Court, and generally between the same parties, though not always, and should relate to substantially the same question or transaction, involving substantially the same defense provided a *95 defense is intended. Consolidation of actions does not depend on the nature of the transaction to which both relate.” 1 R. C. L., 359. Speaking for this Court, Mr. Justice Mclver said: “It has long been settled, in this State at least, that a motion to consolidate is addressed to the discretion of the Court; not, of course, an arbitrary or a capricious discretion, but a legal discretion, to be exercised in view of all the surrounding facts and circumstances.” Pelzer Mfg. Co. v. Sun Fire Office, 36 S. C., 213; 15 S. E., 562. There is great similarity in all the complaints. Those in suits Nos. 1 and 2 are practically identical. Those in suits Nos. 3 and 4 are also .almost identical. The distinguishing feature between actions Nos. 1 and 2, as compared with Nos. 3 and 4, is this: In the former the plaintiff sued for a discontinuance of his service, while in the latter he sued for both the discontinuance and the failure to restore the service on demand. It is clear that all the torts and damages alleged in all the complaints could have been set forth in one complaint. Section 430, Vol. 1, Code 1922, provides this: “The plaintiff may unite, in the same complaint, several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both, where they all arise out of: “1. The same transaction, or transactions connected with the same subject.” When-two causes of action pleaded are so allied in substance, time, and parties as to make them so akin, they may be tried together. Cline v. Southern Ry., 110 S. C., 534; 96 S. E., 532. When they may be tried together, and there is no real good reason for separate trial, why should they not be tried together ? Although the provision quoted from the Code may have been enacted for the benefit, mainly of plaintiffs, it can, and should, be invoked, in a proper instance, for the protection of defendants. While a plaintiff has the right, in the first *96 instance, to elect if he will unite his several causes of action in one suit, the Court, as shown by the authorities before mentioned, may require him to try all of them together, if he refuses to unite. It must be conceded, of course, that, ordinarily, the granting or refusal of motions to' consolidate must be left to the wise discretion of the trial Judge. It has been indicated, however, in the matter of amendment of pleadings, where the Judge also has much discretion, that his exercise thereof will be disturbed, if it deprives a party of a substantial right which he can show he is entitled to under the law. Trumbo v. Finley, 18 S. C., 305. We are sure that in many instances, in the years gone by, the rulings of presiding Judges, in matters wherein they are given the right to exercise their discretion, were not interfered with because of the old unfortunate statement to the effect that it must be shown that there was an “abuse of discretion.” Recently it has been shown time after time that the term “abuse of discretion” does not mean any reflection upon-the presiding Judge, and it is a strict legal term, to indicate that! the appellate Court is simply of the opinion that there was commission of an error of law in the circumstances. Where actions may be properly consolidated without injury to any of the parties, that course should be taken to prevent a multiplicity of suits, to save costs to the parties themselves, to conserve the time- of the Court, to clear congested dockets, and to help the taxpayers, who bear the expenses of maintaining Courts. A defendant, when brought into Court in separate actions on numerous complaints which could be joined in one suit, has a substantial right to request the Court to force his adversary to try all the cases together, when such trial can properly be had, for no man, even if he is a defendant in a Court, should be harassed and annoyed with continued useless litigation. In our opinion, all four *97 of the suits brought by the plaintiff should have been consolidated, and the exception raising' that question is sustained. The most vital question in the appeal relates to the refusal to direct a verdict for the defendant. Proper consideration of the exceptions as to that refusal demands an examination into the facts of the cause. Plaintiff, a property owner within, or close to, the limits of the City of Columbia, desiring electric power for two houses owned by him, on January 20,' 1925; entered into a “construction contract” with the Columbia Railway Gas & Electric Company, predecessor of defendant, and deposited thereunder the sum of $66.08. On the same day, presumably, plaintiff and the company last named also entered into what is called a “service contract,” which it seems became effective, SO' far as payment to be made thereunder, on January 23, 1925. (These twO‘ instruments and rules Nos. 5, 8, 15, and 18, set out in the transcript of record, will be reported.) It is not so shown, affirmatively, but we think we are right in stating that plaintiff paid promptly all of his service bills up to and including the one due for the month ending July 22, 1925. These bills for the two houses amounted to $9.36, of which $3.61 was chargeable to the plaintiff’s own residence, and the balance to the house of his tenants, which we assume plaintiff was also to pay. It was conceded by the parties that plaintiff was entitled on the refund account under the construction contract on July 1, 1925, to 25 per cent, of $9.36, equaling $2.34. If entitled to interest, as claimed by plaintiff, the defendant admitted that such item amounted to an additional sum of $1.76. In July, 1925 (the exact date does not appear), defendant mailed plaintiff a statement and voucher for $2.48, said to' be on the “refund account” as per the construction contract. On August 18th plaintiff had his attorney write defendant a letter, acknowledging receipt of the voucher and statement, but notifying the defendant that there was “evidently a mistake in regard *98 to the refund of 25 per cent, of amount paid for consumption from January 20 to July 1, 1925.” A larger sum — not stated, however- — -“as refund” was claimed, and defendant was informed that, if the matter was not properly adjusted, plaintiff desired return of his deposit of $66.08. On August 24th defendant wrote plaintiff, stating that it had noted that the voucher for refund had not been cashed, that there was an error therein, and requested return of that voucher, and promised that a correct voucher would be issued. On August 27th plaintiff’s attorney again wrote defendant, requesting a new bill showing amount claimed by defendant to be due plaintiff on the construction contract. This letter, it appears, was not answered. Demands were made on plaintiff repeatedly for the payment of his service bills for the months of August, September, October, and November. On December 19th defendant notified plaintiff by letter that, if his arrears for light service for the four months named, amounting to $3.20, were not paid by noon, December 22, 1925, his service would be discontinued, and again request for payment of the bills was made. The bills not having been settled, on December 22d, presumably in the afternoon, over plaintiff’s objection, the service was disconnected. On December 28th plaintiff requested defendant to send him statement of the interest due o-n his- deposit to December 22, 1925, and also the amount due him as 25 per cent, “discount” on all sums collected from persons on his line to the last-mentioned date. January 4, 1926, defendant, replying to plaintiff’s last letter, informed him that his line was being investigated for the purpose of determining whether or not any other line had been “tapped in” thereon'. Plaintiff, again, on January 5, 1926, requested statements from the defendant as to the interest due on his deposit, and as to the amount due him for refund for power furnished over his line. ■ February 20, 1926, plaintiff made written demand that his service be restored not later than noon, February 23 d. The record does not disclose any re *99 sponse by defendant to plaintiff’s last communication. Soon thereafter the suits were instituted. The plaintiff’s testimony contained the following, the italics being supplied by us: “There is no- dispute between me and the company about the total amount of the bills for electric light service for the two houses. The only dispute is about the interest. If there is an error any other way, I do not know it. The records show that at the house I am living in $3.61 of current was used from January to July 1st. Different people, Mr. High-tower, Mr. Arnold, and Mr. Hartley, lived in the other house. I cannot tell whether $5.75 for current used at the other house from January to July is correct or not. But, if correct, that amount, plus the $3.61 used at my house, would make something like $9.36, and I would be entitled to a refund of 25 per cent, on that amount, or $2.34. The defendant sent voucher for $2.48, but afterwards said it was an error, and I wrote them to send me another voucher. sfs * * “ * * * I do not deny not paying my electric bills for four months. Beginning with August, including December, it will be five months. Under my contract I was to pay the bills monthly. I lived up to the contract until defendant.did. not live up to its. I received notices of cutoff a good while before they cut me off. . I did not claim in the first letter to» defendant that I was entitled to interest, because it was ini the voucher. I had no right to complain about interest when they had sent it. My claim was that the refund was wrong and the interest wrong in a way. It was only five months, when six months had elapsed. When defendant wrote that the voucher was in error, I did not try to find out the error, except through this correspondence.” The main witness for the defendant testified: “I knew by August that there was a dispute with Mr. Barrett as to the amount due him by the company on account of his construction contract. But there was no- dis *100 pute about his bills for electric service. Bills for that were correct. If no voucher had been sent Mr. Barrett, and if he is entitled to the interest which he claims, and if the contract for electric service and the contract for the construction of the line are not to be separated, then the company owed Mr. Barrett at the time he was cut off the sum of 10 cents; but, if a voucher for $2.48 had been sent him, then he was indebted to the company at the time of the cut-off as I have testified. “He was cut off within nine days of another credit due him on account of the refund and interest for the six months beginning July 1st. The interest and refund due him on January 1, 1926, on account of his construction contract amount to $4.67. In nine days after he was cut off he would have been entitled to an additional credit of $4.67. “I have no knowledge' of the voucher for $2.48; never saw it before. Have known Mr. Barrett for a number of years, but had no conversation with him at the time he applied to' have the line constructed.” (Italics added.) Included in the grounds upon which defendant asked the direction of a verdict in its favor was this: “That the right to discontinue service in this case is deterrnined by a service contract and cannot be affected by any debt due Mr. Barrett under the other contract under which the line was constructed, and in holding that he (the Court) could not separate the contracts.” Both parties seem to concede in their arguments that the decision as to the correctness of the ruling of the presiding Judge on the motion for a directed verdict, on the ground stated, depends almost entirely upon what this Court conceives to be the holdings made in the cases of Poole v. Paris Mountain Water Co., 81 S. C., 438; 62 S. E., 874; 128 Am. St. Rep., 923, and Johnson v. Carolina Gas & Electric Co., 106 S. C., 447; 91 S. E., 734. The respondent contends that the case at bar comes exactly within the principles an *101 nounced in those cases, while the appellant urges that the decisions referred to are not controlling of the question here. In the Johnson case, this Court held that a public service corporation could not discontinue a consumer’s water supply at two places, even if the consumer had declined to pay a debt previously due for water furnished one of the same places by another company, which debt had been assigned to the corporation which discontinued the service by the company to which the debt was due. That decision was rested, mainly, upon the Poole case, supra, and Benson v. Paris Mountain Water Co., 88 S. C., 351; 70 S. E., 897. The Benson case, while somewhat similar to^ that of Johnson, has some distinguishing features therefrom. There, the water company refused to supply the consumer with water at his residence and at a stable conducted by him, because of failure of the consumer tO' adjust a claim for water previously furnished by the same water company at an entirely different place. However, very much on the authority of the Poole case, this Court decided that the water company should supply the consumer with water at the desired places, since the consumer offered tO' comply with the requirements to secure water there, and tendered the amount due for arrears of water rent at his residence and stables. The principle announced in the Poole case, supra, was. this: “While a public service water company has the right to cut off a consumer’s water supply for nonpayment of recent and just bills for water rents, and may refuse to engage to furnish further supply until said bills are paid, the right cannot be exercised so as to coerce the consumer into paying a bill which is unjust, or which the consumer in good faith and with show of reason disputes, by denying him such a prime necessity of life as water, when he offers to comply with the reasonable rules of the company as to such supply for the current term.” *102 While water is a greater necessity of life than electricity, in modern conditions, the latter is yet regarded as of' prime importance, and it is supplied by public service companies just as water is furnished by these companies. It is manifest that the principles applicable to water companies and their patrons apply with equal force to public service companies engaged in the sale and distribution of electric power to the public. Under the Poole case, and the other cases resting on that decision, the defendant here had the right to discontinue its service to the plaintiff upon the nonpayment by the plaintiff of recent and just bills for the service furnished him, and had, also, the right to refuse a further supply of electricity until those bills were paid. The position of the plaintiff, however, is this: He admits the justness and correctness of the bills for the service furnished, but he contends that the defendant was due him on his construction contract an amount equal, or greater, than the sum he was due to the defendant for the service; that the amount due him should have been credited by the defendant to plaintiff’s account for service, and when such credit was given, the service account would have been extinguished, or the situation, at least, was such, under the circumstances, to show that there was a bona fide dispute as to the amounts due by the plaintiff to the defendant for his service, and therefore the defendant had no legal right to disconnect the service. He asserts also that the check for $2.48, which was sent him by the defendant on the construction account, even if sufficient to cover the sum then due him, was not payment, since he did not accept it as payment. The plaintiff also says that the two contracts between him and the predecessor of the defendant, which were assumed by the defendant, are inseparable, and should be considered and construed together. Because of these contentions of the plaintiff, this case has features which differentiate it altogether from either the Poole, Benson, or Johnson cases. *103 With reference to the two contracts, we think they should be treated as separate and distinct instruments, and it must have been the intention of the parties that they be so regarded. The fact that two papers were drawn and executed is the first important indication that the intention was to have two separate contracts as to the two matters contracted about, and to keep the two accounts between the parties separate and distinct. If the intention had been otherwise, it is more than likely that the agreements contained in the two instruments would have been embodied in one paper, for this easily could have been done. It is not difficult to understand why the company, the predecessor of the defendant, desired two papers. It is well known that large power concerns have, and must keep, in their employ many employees, and have numerous departments. It was necessary for the construction department to have before; it, when needed, the contract relating to the construction of tfie line. It was necessary for the accounting department to have before it the contract as to the service to be furnished thereunder. The rules of the Railroad Commission, to which both these instruments referred, had to be carried out by the company, and different rules of that commission applied to the two contracts. There is no particular reference in either of the instruments to the other, and, certainly, nothing to show that the conditions of one or the performance of such conditions entirely depended upon the other. It is especially true that the performance of the service contract on the part of the consumer was not necessary to protect his rights under the construction contract. The latter is limited, so far as the consumer’s rights are concerned, to a period not exceeding five years from its date. At the expiration of those five years, that contract becomes terminated. The life of the service contract is indefinite and uncertain after January 23, 1926, for after that date either party had the right to terminate it by the simple act of giving 30 days’ written notice to the other of intention so *104 to do on a designated date. The refund payments to be made to the consumer, under the construction contract, depended upon the amount of current distributed over the line, not to the consumer alone, but to any and all persons who might be served by that line. The payments to the consumer, under that contract, are to- be made by the company every six months, and are to cover the amounts due for the preceding six months. The bills o-f the consumer to the company, by the service contract, are to be paid monthly. The plaintiff is entitled to interest on his deposit, to'be repaid in the same manner as the deposit. A reading of Rule No. 15 of the Railroad Commission shows that the consumer is to be paid interest at 6 per cent, per annum on the amount deposited by him with the company. The payment of that interest, however, like the repayment of the amount deposited, is to- be made in proportion to the amount of power furnished over the constructed line. The refunds to be made on the deposit,, with interest added, are 25 per cent, of the bills for service furnished by the company over the line. These payments are to continue as long as five years, but no longer, until the whole of the amount of the deposit, plus interest, has been paid. The payments due to- the consumer on January 1st and July 1st of- each year are simply 25 per cent, of the bills for service over the line for the preceding six months. They are not to be for 25 per cent, of the deposit or interest, or any percentage of the deposit and interest. According to- our calculations, at the time the cut-off occurred, December 22, 1925, the condition of the accounts between the parties, so far as payments to be made thereunder, was this: The plaintiff owed the defendant on that day $4, but only $3.20 thereof was really past due; the company owed the plaintiff on the construction account 25 per cent, refund on his bills for service up to July 1, 1925, of $9.36, which amounted to $2.34. The 25 per cent, of the bills from July 1st was not due until January 1, 1926. If *105 the plaintiff had the right to credit on his service bills, $3.20, the refund of $2.34, he still owed the defendant on December 22, 1925, a balance of 86 cents. In our calculations we have not considered the voucher for $2.48 sent to the plaintiff by the company. It appears, therefore, that at the time of the discontinuance of the service, the plaintiff was due to the defendant a recent and just bill for current rents, which the plaintiff declined to pay. The respondent insists, however, that, in any event, the situation was such as to show that there was a bona fide dispute as to the amount due by the plaintiff to the defendant for his service, and, in that circumstance, the defendant committed a tort by discontinuing the service, and in failing to restore it on demand. That seems to be the pivotal point in the whole case; and, as to that, the right of set-off on the part of the plaintiff of his claim, under the' construction contract, against the account of the defendant against him for the current rents, is involved. It is to be conceded, if the defendant in another action, as plaintiff, had sued the plaintiff, as defendant there, for the amounts of the service bills, that the plaintiff had the right to offer as a defense in such action his claim against the company under the construction contract; but an entirely different situation is presented. The defendant did not sue for its service. In fairness to the plaintiff, we consider the case on his contention that the company should have deducted from the service bills the amount due him under the construction contract, and any and all interest which might thereafter be due to him. In other words, we pass upon the claim that, before the cut-off was made, the defendant should have credited on the service bills the amount it was due to the plaintiff under the construction contract, and, for the benefit of the plaintiff, regard the case as showing that such credits would have equalled, or exceeded, the amount he was due on his service bills. *106 To sustain, however, the contention of the plaintiff, this Court will have to go farther than it went in the Poole case, or in any one of the cases based on the decision therein. It will have to say, when there is no dispute whatever as to the bills of a public service company for water or electricity supplied to its customer, and the customer at the time has any kind of demand against the company which he may use as a set-off against his debt to the company, that the latter cannot enforce payment of its service bills by the well-recognized usual right to discontinue its service, until there has been an adjudication by a competent Court of all the respective claims and contentions of the parties. In the absence of any legislative direction on this subject, this Court has to state what it conceives to be right and just in the premises. In doing so, it must not only have due regard for the rights of the parties to this litigation, but must look forward to situations similar, or akin, to that in the case at bar, which may arise in the future. The denial of the usual power of a public service company to cut off its patron’s supply of water or electricity, when there is a bona fide dispute as to the amount due for the service furnished, is founded upon the principle that the patron is not to be penalized, oppressed, or coerced because he asserts his rights as a citizen to dispute, in good faith, a bill of the company. It is not based upon the other idea that the consumer has the right to' require a continuance of the service when accounts therefor are not questioned, until there is a settlement" of some other account or demand that the consumer may have, or claim to have, against the compány, other than one with reference to the service bills. If the latter principle were the foundation of the rule in respect to the mutual rights of the parties as to a continuation of the supply of water and electricity, impecunious and advantage-seeking individuals could, by the assertion of almost any kind of demand against a public service company, require it to continue almost indefinitely to supply them with *107 either water or electric current. Water and electric companies, in their activities, have numerous persons to deal with, and transactions of multiple and varied characters. To pursue the course suggested in a way by the position of the plaintiff as one to be adopted in dealings between a public service water or electric company and its patrons would require the company, before it could discontinue the service of a patron delinquent in the payment of his bills - for such service, to see that the company was not, through some other department than that in charge of rendering bills for service, possibly indebted to> all its patrons. Such company with bonds outstanding would have to be assured, before cutting off a consumer’s supply, that such consumer was not a holder of one of its bonds, or, if he were a holder thereof, that he had been sent a voucher for interest due on the bond he held, and that he had accepted and cashed the voucher for such interest. If the patron of the company were a hardware merchant, the company would have to- be certain that its construction department had paid all bills incurred with him for pipes or other equipment furnished to the company. Many other like illustrations could be given. Again, water and electric companies may be engaged in their operations in two or in several places. The theory of the plaintiff might make it necessary for a company so situated to continue its service to a nonpaying customer in the village of A, where he had his summer home, for fear that there was an obligation due him in the city of B, where he had his store. It must not be ovérlooked either that many of our municipalities, under legislative sanction, for the health and comfort of their citizens, are engaged in the business of supplying water and electricity. To establish the necessary plants, in numerous instances, the people of these municipalities have voted bonds to procure the required money therefor, and have assumed the payment of the principal and interest thereon. Municipal plants, in most respects, are subject to. *108 the same general legal principles in their dealings with their patrons as are applicable to privately owned concerns. If plaintiff’s contention is sound, the commissioners of public works of “N” could not discontinue the water supply of Mr. X, a dealer in live stock, who. is indebted for water furnished, and the bill known to be correct, until the commissioners ascertain if the city treasurer’s check to Mr. X, for •a mule sold by him to the garbage department of the city, had been accepted and cashed. The commissioners of public works would also have to be certain that a street laborer had been paid all the money due this laborer through the street department, before the laborer’s electric lights could be turned off for nonpayment of an admitted correct bill for the burning of these lights. We cannot agree that the position of the plaintiff is correct, nor that the doctrine of the Poole case was ever intended to be extended farther than is plainly announced therein. The principle there declared was founded upon the sound and just idea of protecting the consumer’s right to a prime necessity of life against the great power which might be exercised, unwarrantedly, by a public service company. It prevented the public service company from being judge and jury as to. the claims of the consumer against itself, growing out of their agreements and transactions as to the furnishing of that prime necessity of life. It could not have been the intention of the principle of the Poole case to prevent, in any instances, the right of a public service company to collect money honestly (due?) from a delinquent patron. It surely was not intended to malee the patron a judge and jury to pass upon the justness of some claim he might hold against the company, extrinsic to the particular contract as to the supply of water or electricity. The defendant’s motion for a directed verdict in its favor should have been granted. The exceptions as to the refusal to grant that motion are sustained. *109 In view of the conclusions we have reached, we deem it unnecessary to pass upon the other exceptions. The judgment of this Court is that the judgment below be reversed, and that a verdict in favor of the defendant be entered up, as provided under Rule 27. of this Court. Mr. Chief Justice Watts and Messrs. Justices Cothran and StabeER concur.