Gardner v. Springfield Gas & Electric Co.

GRAY, J. This case is in this court on appeal by the defendant from a judgment of the circuit court of Greene county. In May, 1907, the plaintiff was conducting a moving picture show at 305 South street, in Springfield. The defendant at said time was and now is a corporation organized under the laws of this state, and operating an electric light and power plant in said city. In May, 1907, a contract was entered into between the plaintiff and the defendant, by the terms of which the defendant agreed to furnish plaintiff light and electric current necessary to operate his said picture show. The defendant furnished the light and power under the contract, but in February, 1909, became suspicious that plaintiff was using more current than he was paying for. An investigation disclosed the fact that plaintiff was using a device known as a “shunt wire,” by which — 671 — the current of electricity was being diverted around the meter so that the meter installed to measure the current óf electricity did not correctly register the same. When this was discovered, the defendant instituted proceedings to collect $1096, being the amount defendant claimed plaintiff owed it for the electric current diverted as aforesaid. The plaintiff refused to pay the bill, and' defendant thereupon refused to furnish plaintiff any current. The. plaintiff sued out an alternative writ of mandamus to compel defendant to furnish him the current, and upon final hearing the plaintiff was successful, and the peremptory writ issued. The defendant-appealed to the St. Louis Court of Appeals, but neg- ■ lected to give an appeal bond and the appeal was abandoned. Thereupon, the defendant sued out a writ of error but failed to give notice thereof, and on motion such proceeding was dismissed. After the mandamus was made peremptory, the plaintiff instituted this suit to recover damages from the defendant for its failure to furnish electric current under the contract, alleging his damages in the following language: “Plaintiff -says by reason of the premises that he has been damaged by the defendant; that on and after cutting of connection and refusal to furnish service on the - day of March, as aforesaid, the plaintiff endeavored to furnish himself with light and power from other sources by hiring a traction engine, employing engineers and other employees for such service, and undertook by such means to furnish himself with light at a great expense, vastly in excess of the cost of the power furnished by the defendant at its usual rates and at the rates aforesaid; that the plaintiff continued to attempt to supply service in the manner aforesaid for and after the-day of March, as aforesaid, until the 5th day of June, 1909, and that the expense thereby incurred in excess of what his light and power would have cost if furnished by the defendant at its usual — 672 — rate was thirty-five dollars per week. Plaintiff further says that although he attempted to supply himself with light and power in the manner aforesaid that such light and power were insufficient and inadequate, by reason whereof his pictures used in the conduct of his moving picture show were dim, unsatisfactory to such an extent that his custom fell off, the attendance diminished so that he could no longer do a profitable business and that he could not conduct the said business except at a loss, and filially, by reason of the diminished attendance and the increase of expense he was obliged to close down and stop the said business' on or about the 5th day of June, 1909; that his business when furnished with proper light and power had been extremely profitable, such that the plaintiff made as a profit in the conduct of the same about five thousand dollars per year over and above all expenses, and could make a like amount if said power and light had been furnished by the defendant, but by reason of the acts of the defendant as aforesaid he incurred the expense aforesaid and Ms business was diminished, run down and absolutely ruined as aforesaid at the said premises. “Wherefore, by reason of the premises, the plaintiff says he is damaged by the acts of the defendant as aforesaid in the sum of six thousand dollars, for which he asks judgment.”- , The answer, in addition to a general denial, alleged affirmatively the execution of the contract and the organization of the defendant; that the plaintiff entered into the contract with the intent to defraud defendant, and with the fixed intent to divert and misappropriate a portion of the current necessary to the operation of his business, and that plaintiff, in furtherance of said design and fraudulent intent, installed on his premises the shunt wire, and thereby diverted a part of the current before it passed through the meter, and thereby used and consumed much electric current for which he did not pay,' and the same was installed — 673 — and used for the purpose of cheating and defrauding the defendant; that on or about the-day of March, 1909, the plaintiff also installed a moving picture show at 322 South street, in said city, and advertised that he was generating his own power and electricity for the operation of his said plant and show at said No. 322 South street, whereas, in truth and in fact, he was using the current of the defendant at said place without its knowledge or consent, and with the intent to defraud' defendant, and thereby actually did defraud the defendant; that defendant cut off the service at 305 South street, and that it did so because plaintiff was indebted to it for the current diverted and refused to pay the indebtedness or any part thereof, and because of the fraudulent intent of plaintiff at the time of entering into the contract and of his fraudulent act and conduct after the execution of said contract and' relating thereto. The defendant further answered: “That on the — day of-, 1909, the so-called Division No. 2 of the circuit court of Greene county, Missouri, in a proceeding in the name of the state at the relation of the plaintiff herein, rendered a pretended judgment against this defendant, but defendant says that said pretended judg: ment did not find and adjudge as stated by plaintiff that defendant had wrongfully disconnected its said wires, and wrongfully refused to furnish power to plaintiff, and did not order that defendant restore said connections and resume the furnishing of power and current to plaintiff as alleged in petition.” It was further alleged that the pretended judgment rendered by said circuit court of Greene county, was void because the creation of said court and the appoint.ment of the judge thereof was unconstitutional, and that said court had no legal existence. The plaintiff filed a motion to strike out a part of the answer, but the same was never passed on, so far as — 674 — the record discloses. The trial resulted in a judgment in favor of tlie plaintiff in the sum of $3000. The first claim made by the appellant is that the cause should be transferred to the Supreme Court, on the ground that a constitutional question is presented. The so-called constitutional question relates to the existence of said Division No..2 of said court. The question of the legal existence of the court cannot be raised on appeal in a cause instituted in such court. [State v. Searcy, 46 Mo. App. 422, 111 Mo. 236, 20 S. W. 186.] The record in the mandamus case was introduced in evidence, and it appears therefrom that the plaintiff presented to the court an application for writ to compel the defendant to furnish power under the contract; that the court heard the evidence, including all that introduced by defendant tending to prove that plaintiff had knowingly diverted the current, and by the plaintiff in defense of said charge. There was enough in the finding of the court in the mandamus case to show that the court found that plaintiff had knowingly diverted the current, as charged by the defendant, but judgment was rendered in favor of the plaintiff or relator in that suit, and as the appeal was abandoned and the writ of error dismissed, the judgment became final as to all issues presented therein. [26 Cyc. 486; Merrill on Mandamus, sec. 315.] In the mandamus proceeding, the relator asked for no damages and none were allowed. The defendant now claims that the damages if any; should have been assessed in that proceeding, and that the present action cannot be maintained, and in any event for more than nominal damages. In many of the states, statutes have been enacted, allowing the relator to recover his damages in the mandamus proceeding. [26 Cyc. 484; McClure v. Scates, 64 Kans. 282, 67 Pac. 856; People v. Supervisors, 28 N. Y. 112; State ex rel. v. McGregor v. Young, 61 N. W. 165; Hollister v. Donohoe, 92 N. W. 12.] And in — 675 — this state we have such a statute. [R. S. 1909, sec. 2551.] The New York statute is similar to ours, and the court of appeals of that state has held that the relator may recover the damages in the mandamus proceeding, or he may institute an independent suit therefor. [People ex rel. Goring v. Wappingers Falls, 151 N. Y. 386.] In passing upon the question, the court said: “It is the evident intent of the Legislature that a relator who has secured his final order for the peremptory writ ought not to be driven to his action for damages and subjected to the delays incident to a second litigation, but if he so elects the court must award him his damages in the pending proceeding.” In many cases the relator would be very anxious to secure the peremptory writ at the earliest possible date, and would not want to delay the proceedings necessarily caused by submitting the collateral issues of damages and having them disposed of before the final writ was issued. We believe the relator had the right in the mandamus proceeding to limit his prayer for relief to the issuing of the peremptory writ and did not thereby lose his right to institute the independent proceeding to recover the damages sued for in this case. The plaintiff was permitted to examine' a book called his “ledger,” and to testify from it as to his receipts and expenditures. The testimony showed that the entries in the book were made at the end of the month and copied from the day book. The defendant claims that in as much as the items in the hook did’ not refer to transactions directly between the plaintiff and the defendant, the book was not admissible, and if wrong on this proposition, yet the ledger was not a book of original entries, and was therefore not admissible in evidence. The plaintiff testified that he kept, a day book showing the transactions of each day, and at the end of the month he copied them into the ledger. — 676 — There is a difference between offering the books in evidence and permitting a party to use the same in aid of his recollection. [Ward v. Transfer & Storage Co., 119 Mo. App. 83, 95 S. W. 964; State v. Carpenter, 216 Mo. l. c. 449, 115 S. W. 1008.] The plaintiff testified to the amounts received from the sale of tickets during the year previous to the time defendant refused to furnish him current. In aid of his recollection on the subject he was permitted to examine his ledger after he had testified that he had correctly copied from the day book the items contained therein. We can see no objection to the action of the court in permitting him to use the book to aid his recollection. Books of original entries are admissible in evidence as a part of the res gestae of the transaction which they purport to record. [Gubernator v. Rettalack, 86 Mo. App. 184.] There' are numerous transactions in any business which it would be impossible for the parties to carry the details thereof in their minds, and therefore, books are kept and entries are made at the time such transactions are had. They are usually made at a time when no motive existed for falsifying, but simply for the purpose of preserving the correctness thereof. In such cases the books of original entries are admissible in evidence and the fact that they do not record transactions between parties to the suit, will not effect their admissibility. This court, in the case of Morrow v. Railroad, 140 Mo. App. 200, 123 S. W. 1034, held that books of a miller were’admissible to establish his loss of profits caused by a failure of a common carrier to ship repairs within a reasonable time. We are of the opinion that the court did not err in permitting- plaintiff to refresh his memory by the use of the ledger. We are also of the opinion that plaintiff’s books of original entries were admissible in proof of loss of profits. — 677 — In behalf of the plaintiff the court gave the jury the following instructions: .“No. 3. You can only consider the question of whether plaintiff used current for which he did not pay, and the amount so used, if any such amount has been proved to your reasonable satisfaction to have been so diverted and used," in determining the expense of running his said business as compared with what the expense would have been had said current not been so diverted, and consequently its effect upon the profits of his said business; and the burden is on the defendant to show by the preponderance of testimony that current was so diverted, and the amount of current so diverted. “No. 5. While you are instructed that plaintiff’s damage, if any, accrued between the 30th day of March and the 5th day of June, 1909, you should consider the loss of plaintiff’s business at the latter date, if it was lost, and the probable value of said business from the profits which you believe from the evidence certainly would have accrued to plaintiff in the future if defendant had continued to furnish him electrical service.”' The defendant furnished current for plaintiff until the 30th day of March, 1909, and the peremptory writ of mandamus was ordered on June 14, 1909, but previous to the issuing of the peremptory writ and on the 5th day of June, 1909, plaintiff sold his business and thereafter was not interested in the premises. It will be noticed that instruction No. 5 submitted to the jury the issue of the total loss of plaintiff’s business on account of the defendant’s failure to furnish him current. How can it be said from the* evidence that the total loss of the business was an issue for the jury? If the defendant wrongfully violated its contract and refused to supply current to operate plaintiff’s business, then plaintiff was entitled to recover damages caused by the suspension of his business during the time defendant refused to furnish current. — 678 — Tbe defendant gave no appeal bond in tbe mandamus proceeding, and therefore, plaintiff was entitled to tbe peremptory writ and tbe service thereof, and we cannot presume that tbe defendant would have refused to obey tbe same. Instead of asking for tbe service of the peremptory writ, tbe plaintiff saw fit to dispose of bis business, and now claims a total loss thereof because tbe defendant refused to furnish him current during tbe months of April and May, 1909. There is nothing in tbe evidence to justify tbe claim that if plaintiff bad resumed bis business after defendant was ordered to deliver him current, be could not have done so with as much profit as be bad enjoyed in tbe past. He testified that between March 30th, and June 5th, and on account of bis inability to get power, tbe attendance dropped off until be could not operate at a profit. But bow could be tell that be would not operate at a profit when tbe objectionable features to bis show bad been removed? Tbe authorities are collected and thoroughly discussed by tbe Presiding Judge of this court in tbe Morrow case above cited. Prom an examination of that case and tbe authorities therein cited, it will be seen that loss of profits and business are only recoverable in cases where, tbe operation of an established business has been interrupted, or in cases where tbe evidence makes tbe loss of profits and tbe amount thereof reasonably certain. Tbe instruction complained of in this case, in so • far as it authorized tbe recovery for tbe extra expense and tbe loss of profits to plaintiff’s business between tbe time defendant refused to furnish current and tbe time tbe peremptory writ was ordered, is unobjectionable. [Morrow v. Railroad, supra.] But when it submitted to tbe jury tbe difference between plaintiff’s receipts after such time, and after tbe defendant bad again turned on the current, and what they would have been bad tbe current, never been turned off, .it certainly entered into tbe field of tbe wildest speculation. There — 679 — was no limit fixed to the time. By the instruction the court told the jury there was evidence that .plaintiff’s business had been ruined, and that even though he started up again after the defendant had furnished him current, that the business would be effected for years to come on account of the defendant’s refusal to furnish him current between March 30th and June 5th. .The - instruction was highly prejudicial to the defendant and must cause a reversal of the judgment. Instruction No. 3 is wrong also. If the jury found from the evidence that the plaintiff diverted the current so as to cheat the defendant out of a part of the sum he owed it therefor, then the burden was not upon the defendant to show the amount and value of the current diverted. The burden was upon the plaintiff to prove the loss of his profits, and in doing so he was rightfully permitted to show his receipts and expenditures for a reasonable time previous to the time defendant refused to furnish him current. [Morrow v. Railroad, supra.] In order to show his expenses it was necessary for him to show the amount and value of the current used in his business. When the evidence showed that only a part of the current passed through the meter, and that other was used, then it was his duty to show the amount and value thereof. There is another reason why the burden was upon the plaintiff. If he wrongfully diverted the current, the time he did so was a matter peculiarly within his own knowledge. As the case must be retried, there is another matter of evidence which should be considered. The plaintiff offered in evidence the files and records in the mandamus proceeding, except the finding of facts of the trial court. The defendant offered the finding of facts, but they were excluded on the objection of plaintiff. In the finding of facts the court found that plaintiff had knowingly diverted the current, but with knowledge that the same had been’ done defendant afterwards furnished plaintiff — 680 — current. .The evidence offered by the plaintiff relating to the mandamus case simply showed that the court had directed the defendant to furnish current, and from this plaintiff was in a position to urge before the. jury that the court had found that plaintiff had diverted no current. As we have heretofore stated, the proceedings in the mandamus case are not subject to collateral attack. One of the issues in that case was whether the plaintiff had knowingly diverted current, and that issue was found by the trial court in favor of the defendant. The evidence of such finding was the finding of facts in the case. It is true on appeal the appellate court is not bound by the finding of facts of the trial court in an equity case as in a law case, but the statute applies both to legal and equitable actions. [Miller v. McCaleb, 208 Mo l. c. 573, 106 S. W. 655.] The plaintiff in the mandamus case secured his ■judgment because the court found a certain state of facts to exist. In plaintiff’s instructions to the jury in this case, the court told the jury that the mandamus proceeding was conclusive as to all the issues found in plaintiff’s favor, but refused to permit the defendant to prove what issues were found in its favor. The parties were in court in the mandamus case, and they then and there submitted to the court the question as to whether the plaintiff had wrongfully diverted the current, and the finding of the court upon that issue was as much binding on the parties, as any other issue determined in the case. There are some other errors complained of, but it will not be necessary to consider the same. The judgment of the trial court will be reversed and the cause remanded. All concur.