Carson v. Fort Smith Light & Traction Co.

Kirby, J., (after stating the facts). The testimony is undisputed that the appellee company had been furnishing gas to appellants at 25 cents per thousand cubic feet and had the right to change the price thereof upon notice to its customers and that the notice of the change in price to take place on April 1 had been duly given to appellants; that appellants were upon a slot meter which measured 1,000 feet of gas for consumption upon dropping a quarter into it; that John Carson’s wife, upon the day the meter was changed, put a quarter into it about noon; and at 3:30 appellee’s agent “robbed the meter;” that is, collected the money therefrom — $3.45; changed the meter to register according to the new price fixed for gas and turned it back to zero, turning out all the gas therein. The company’s agent, at the time the appellant complained of his action in shutting off the gas, said his instructions were to do so and that it was because they had been burning gas from the first to the nineteenth of the month at the old rate of 25 cents' and owed the difference, and that the gas would continue to be furnished at the new rate upon dropping the quarter in the meter as usual. Appellants had not been notified that they were behind with the payment of their gas bills nor that the gas would be shut off on that account, and it was the custom of the company and the terms of the contract required that the bills should be paid monthly, nothing being said in it about the slot meter. In any event, it can not be questioned that appellants had the right upon putting the quarter into the meter to consume the amount of gas for which it paid and when it was so deposited and the gas turned into the meter, it was delivered to them and became their property with the right to consume it at their convenience, so long as the terms of the contract.were not violated in so doing. Chouteau v. St. L. Gas Light Co., 47 Mo. Appeals, 326; Schmeer v. Gas Light Co., 147 N. Y. 529; 42 N. E. 202; 30 L. R. A. 653; Blondell v. Gas Co., 89 Md. 732; 43 Atl. 817; 46 L. R. A. 187. It may be true that the gas company had the right under its contract to shut off the supply of gas to appellants to compel the payment of amounts already due for gas consumed, or furnished, but it could not do so until after giving notice in accordance with the terms of the contract, and certainly with the slot meter in use and the money deposited therein for the payment of 1,000 cubic feet of gas according to the old price, and of that much upon the price of a thousand feet according to the last rate fixed, it had no right to turn the gas already delivered to appellants out of the meter. If according to the usage they were entitled to continue to consume one thousand feet of gas for each quarter deposited in the meter until the meter could be changed to register in accordance with the advanced price, which we do not decide, the gas in the meter was already paid for, and if it can be said they should be held to the payment of the advance price for all the gas consumed since they were notified it should go into effect, then they would only have owed for the difference in the price, which would have been collected on the first of the succeeding month and could not have warranted their agent in turning the gas already delivered in the meter out. It was as much a wrongful act as if he had taken or destroyed any other of the personal property or effects of these appellants in their home. It was a tort, pure and simple, committed without justification or excuse, and for which the gas company should be held answerable for all damages directly traceable to the wrong done and arising without an intervening agency and from no fault of the persons injured. Coy v. Indianapolis Gas Co., 146 Ind. 665; 46 N. E. 17; 36 L. R. A. 535; Indiana Gas Co. v. Anthony, 26 Ind. App. 307; 58 N. E. 868; Thornton, Oil & Gas, § 534. The question of damages is not affected by reason of the fact that it can be said that such a condition as resulted from the turning off of the gas could not have been within the contemplation of the parties under the contract and duty of the company to supply it, since the action arises out of its wrongful conduct in turning out the gas already delivered which may also have constituted a breach of the contract to furnish; ■ The evidence is conflicting as to the amount of gas already measured by the meter that was turned out, appellee claiming that only 10 cents worth remained unconsumed while appellants claim that the gas paid for should have lasted twenty-four hours- and had only been burning three. It is true it is undisputed that the gas was not disconnected from the premises and that it would have continued to be supplied' upon the dropping of another quarter into the meter, and also that appellant’s husband had another quarter and was notified of the condition immediately after the gas was turned out but did not regard it of sufficient moment to come and bring or send the money with which to purchase more gas to comfortably heat the dwelling, and that her efforts to procure it in the neighborhood were fruitless. These views, which are concurred in by the majority of'the judges, Mr. Justice Smith dissenting, settle the law' of the case and call for reversal of the judgment. An agreement can not, however,, be reached by the majority in the application of the law to the facts of the case. The writer and Mr. Justice "Wood are of the opinion that under the law stated above the proof is sufficient to show substantial injury to appellant as the proximate result from appellee’s wrongful act and that the cause should be remanded for a new trial. The conclusion of the Chief Justice and Mr. Justice Hart is that the alleged wrongful act was not the proximate cause of the injury, which they think resulted from appellant’s own failure to minimize the damages by procuring from her husband, or some one else, the trifling sum necessary to pay for more gas, and that she should only be allowed to recover nominal damages, for recovery of which, causes are not remanded. Mr. Justice Smith is of the opinion that the judgment Should he affirmed. Thus it will be seen that four of the judges agree to the reversal of the judgment, but only two of them favor remanding the cause for a new trial. From an adjustment of the views of all the judges the only net result that can be extracted is that the judgment must be reversed, but the cause will not be remanded for a new trial. • Appellant is, therefore, entitled to a judgment for nominal damages. So it is ordered that the judgment be reversed, and that-judgment be entered here in favor of appellant for nominal damages, which carries judgment for costs in both courts.