
    Samuel Lloyd v. The Washington Gaslight Company.
    At Law.
    No. 20,827.
    { Decided December 30, 1881.
    
      i The Chief Justice and. Justices Wylie, Hagnek and James sitting.
    On moving into his ,place of business plaintiff signed the following agreement with defendant, the Washington Gaslight Company: “We, whose names are hereunto subscribed, agree to take gas from the Washington Gaslight Company upon the condition that the company reserves to itself the right to refuse to furnish or at any time to dis-■qouiinue gas to any premises the owner or occupant of which shall be indebted to the company for gas or fittings used upon such premises or elsewhere.”
    Held, that this contract related only to future delinquencies, and that defendant was liable in damages for cutting off plaintiff’s supply of gas because of non-payment of an old bill for gas furnished before the signing of this contract and at another place.
    STATEMENT OE THE CASE.
    Motion for new trial on exceptions.
    The declaration contained two counts. The first count set out that plaintiff was the tenant in possession of premises known as 905 D street, in the city of Washington, which were supplied'with gas pipes and fixtures connected through a metre with the main pipe in the street, in front of said premises, for the purpose of having the same lighted for the use and accomodation of the plaintiff, and that the defendant, without just cause, on the 17th December, 1877, cut off the flow of gas to said premises, and has failed to supply plaintiff with gas since, though often requested so to do, whereby he has sustained great loss and damage. The second count alleges that plaintiff having his said premises so supplied with gas fixtures connected with the main pipe belonging to defendant, and not being indebted in any way for gas consumed on said premises, the defendant, without just cause or right, on the 17th day of December, ^1877, cut off' and stopped the flow of gas through said pipd and fixtures, and has refused since to turn on the gas, or allow the same to flow through said pipes. That he was engaged on said premises in the business of a mannfacttírer of mattresses and feather beds and pillows ; that he required gas in said business, and he has sustained special damages by reason of being deprived thereof by the act of the defendant, &c., &c.
    The defendant pleaded “ not guilty,” and issue was joined thereon, and at the trial the jury found for plaintiff. The case then came to the General Term on the following
    BILL OR EXCEPTIONS.
    Upon the trial of this case the plaintiff to maintain and prove on his part the issue joined thereon, offered and introduced in evidence to the jury tending to show that, in the month of January, 1877, he occupied premises No. 905 I) street, in the city of Washington, and carried on business as a manufacturer of mattresses, using in said business, hair, husk, and straw, and had occupied said premises for some years before that, and in the conduct of said business used gas as a means for obtaining light; that he employed several hands to assist him in said business, the number differing at different dates, whose average pay was from $4 to $9 per week ; that he was supplied with gas at the premises so-mentioned until the 17th of December, 1877, when it was cut off by order of the defendant, the Washington Gaslight Company ; that before the gas was cut off he was notified that the gas would be cut off. unless he paid a bill for gas consumed by him at certain other premises on Tenth street, in the city of Washington, and for which he had not paid ; that when so notified he informed the agent of the defendant that he would not pay the bill for the gas consumed upon the premises on Tenth street, defendant having the landlord as security for the payment thereof; that he was ready to pay anything that he owed for gas furnished to the premises 905 D street, then occupied by him; and that if the defendant cut,off the gas from the premises 905 D street for gas consumed at the premises on Tenth street, it did it at its peril and must meet the consequences; that the defendant did cut off' the gas from premises 905 D street, and did not renew the supply, by reason whereof his business was much injured and he was greatly damaged — and plaintiff rested.
    
      Whereupon the defendant, to maintain the issues on his part joined therein, offered and introduced in evidence to the jury tending to prove that, at the time that the plaintiff applied to the defendant to have gas supplied to him at the premises No. 905 D street, he signed a contract with said defendant, which was in the language following:
    “ We, whose names are hereunto subscribed, agree to take gas from the Washington Gaslight Company upon the conditions and subject to regulations herein contained,” and among others, upon the condition that “the company [meaning defendant] reserves to itself the right to furnish, or at any time to discontinue, gas to any premises, the owner or occupant of which shall be indebted to the company for gas or fittings, whether such indebtedness shall be for gas or fittings used upon such premises or elsewhere; ” that in December, 1877, when the gas was cut off from the premises 905 D street, the plaintiff- was indebted to defendant the sum of $10.25 for gas consumed by him at premises No. 819 Tenth street, where he had formerly resided; that'on the 15th of December, 1877, his attention was called to this indebtedness of $10.25 by an employee of defendant, and he was notified that if he did not pay it -the gas would be discontinued to him at the premises 905 D street, then occupied by him; and that he was again notified to the same effect December 17, 1878, before the gas was discontinued to those premises by defendant’s orders; that after the supply of gas had been discontinued to the said premises 905 D street by defendant’s order, the plaintiff" continued to carry on his business there, using coal-oil lamps as a substitute for gas; and defendant further proved, by H. A. Linger, a witness produced and svrorn in its behalf, that he, said witness, was a wholesale manufacturer of mattresses, in the city of Washington, and used coal oil whenever he worked in said manufacture at night' having no gas at his place of manufacture —it appearing upon cross-examination of said witness that he did not work much at night, and did a very small retail business — and defendant rested.
    
      Whereupon the defendant prayed the court to instruct the jury as follows :
    
      First. That there was no obligation, on the part of defendant, to furnish plaintiff with gas, aside from the contract between it and said plaintiff, and that no such obligation can be implied from the fact that the premises in question were supplied with pipes and fixtures connected with defendant’s main, and that the relations between plaintiff and defendant in respect to the supplying of gas originate in, and are to be controlled by, the contract.
    
      Second. That if the plaintiff for the purpose of obtaining-the defendant’s gas, signed a contract wherein he agreed that defendant might at any time discontinue the supply of" gas to him (plaintiff) when he became, or was delinquent in the payment of any debt he might owe defendant for its gas, -whether used upon, or supplied to, the premises then occupied by him or any other, and that plaintiff, being SO' indebted, refused to pay such debt, then — under the contract in question — defendant had a right to discontinue the supply of gas to the said plaintiff at the premises then occupied by him.
    
      Third. That if plaintiff', when the gas was discontinued, could have used some other light, and did not, defendant could not be made responsible for any loss arising from plaintiff’s neglect to use such other light, notwithstanding-that the use of such other light might be accompanied with danger or inconvenience.
    
      Fourth. That if plaintiff', by the payment of the sum of $10.25 — the amount due from him for gas consumed at 819 Tenth street — could have obtained a supply of gas at the premises 905 D street, and did not do so, but preferred to abandon his business, either in whole or in part, defendant is not responsible for any loss arising from plaintiff’s refusal to pay such indebtedness.
    
      Fifth. That if a waiver of the right of defendant to collect the amount in arrears at 819 Tenth street, by discontinuing gas to plaintiff is to be presumed from the fact that defendant entered into a new contract with plaintiff, while such arrears wrere unpaid, the effect of such waiver is done away with by the notice given to plaintiff by defendant that the supply of gas would be discontinued at premises No. 905 I) street, unless such arrears were paid.
    Which said several instructions so prayed by defendant, the court then and there refused to give, to which refusal the defendant, by its counsel, prayed leave to except, and that the court would sign this, its bill of exceptions, according to the form of the statute in such case made and provided, and which is accordingly done this 11th day of March in the year 1881.
    [seal.] Arthur Mao Arthur,
    
      Justice.
    
    W. B. Webb for defendant (plaintiff in error) :
    The declaration in this case proceeds distinctly upon the aground of a breach of duty on the part of the defendant. No contract is set out, and it is not insisted any where, either in the pleadings or in the proofs, that the damages claimed result from the breach of any express contract on the part of defendant to furnish the plaintiff with gas. The charge is that "''the plaintiff occupied premises.supplied with gas pipes and fixtures connected through a meter with defendant’s main, . and was entitled to have them supplied with gas by defendant, and that defendant, without right, and without the consent of the plaintiff, cut off the gas from the said premises, and has refused to renew the supply, though requested so to do.
    As far as the matter of a contract is concerned, it makes 'a/1 H > difference that the plaintiff was not indebted to the d,e-'A }i\ endaut, as is alleged, at the time the flow of gas was discofir í - ^ tinued to his premises. The fact remains, there was no\ contract alleged and none proved on the part of plaintiff It is submitted that under these allegations the plaintiff must recover, if he recover at all, for the breach of a duty imposed upon the defendant either by express law, or arising out of the peculiar relations existing between it and its customers. There can be no recovery under the pleadings, in this case, ut auy implied contract. Under these circumstances, the„ question to be considered is raised by the first instruction asked of the court.
    In this, the court is asked to instruct the jury that there is no obligation on the part of the defendant to furnish gas to the plaintiff, and that such obligation cannot be inferred from the fact that the premises occupied by him were furnished with fixtures connected by pipes with defendant’s main.
    Both in this country and in England this very question has been before the courts in several cases, and it has been uniformly held that there is no such obligation resting upon the manufacturers of illuminating gas. See the cases following : McCune vs. Norwich City Gas Co., 30 Conn., 522 ; Pattison Gaslight Co. vs. Brady, 3d Dutcher, 246 ; The Hod-deson Gas and Coke Co. vs. Haselwood, 6 C. B., N. S., 239.
    J. G. Bigelow for plaintiff (defendant in error):
    The record consists of the pleadings, a partial statement of the evidence, and the defendants’ five rejected prayers. The first of which is comprehensive enough to cover the whole case, no matter what the proofs were. It contains the proposition that the defendant is under no obligation to furnish the plaintiff gas, by reason of anything contained in its charter. Sec. 7 (9 U. S. Statutes at Large, p. 722, July 8, 1848) provides: “That the president and directors shall have full power and authority to manufacture, make and sell gas, to be made of coal oil, tar, peat, pitch or turpentine, or other material, and to be used for the purpose of lighting the city of 'Washington, or the streets thereof, and any buildings, manufactories or houses therein contained and situate,” &c.
    Under such a provision in the charter o£ a gaslight company a mandamus will lie in behalf of a citizen who has complied with the general rules and regulations of the company, to compel it to furnish gas. People vs. The Manhattan Gaslight Company, 45 Barb., 136, S. 0.; 30 Hovwd, 87, S. C.; 1 Abb. N. S., 404 ; State vs. The Columbia Gaslight and Coke Company, (Sup. Ct. Ohio), 8 Reporter, 533 ; Morey vs-The Met. Gaslight Company of N. Y., 38 Superior, Ct., 185.
    
      Tbe peculiar relations the defendant sustains to the public are such as to make it incumbent upon the defendant to supply gas to all citizens who have complied with the general regulations of the company. This is the main Object of the charter.
    2. The remaining four prayers are subject to the same objection, viz.: The record does not purport to contain all the evidence in the case. In point of fact, it contains only a partial statement of the testimony of the plaintiff, and no statement at all of the testimony of several witnesses. It does not appear by the record when the gas bill at No. 819 Tenth street was paid, or what the bargain or agreement was between Lloyd and the owner of the premises in reference thereto, or whether the owner was jointly obligated with Lloyd to pay the same to the defendant.
    “ When the bill of exceptions does not purport to set out all the evidence, the appellate court will presume that a general affirmative charge was justified by the evidence.” School Commissioners v. Goodwin, 30 Ala., 242. Fleming v. Ussery, lb., '282.
    When a bill of exceptions does not purport to contain all of the evidence, the court will not examine to see if it sustains the verdict, but will presume that there was other and sufficient evidence to support it. Peoria, &c., R. R. Co. vs. Mclntire, 39 Ill., 298; Central R. R. Co. vs. Garish, lb., 370.
    Hence it is utterly impossible to say whether the jury was influenced one way or the other by the ruling of the court. The grounds not covered by the second, third, fourth and fifth prayers are amply sufficient to warrant the verdict. The doctrine of the third prayer is found in the first, and means simply that under no circumstances outside of a special contract to that effect, is the defendant bound to supply gas to the plaintiff. Because the verdict may be justified by the law and the evidence not in the record, arises the rule of law that an appellate court, in such a case, will presume that a general affirmative charge was given justified by such evidence.
    3. The question whether the defendant, under its charter, haB the right to adopt .a.rale to-visit the default • of' one of its gas consumers at his dwelling, situate in one part of the. city, upon his place of business situate in another part of the city, and where there has been no default, is presented in the record.
    Under its charter-and its'amendments this- gas company can make all necessary rules-that are reasonable. The company may be the judge of whether a rule is necessary¿ but whether it can be reasonable is for the court to determine. The court below very properly considered- The company’s-third rule, reserving to itself the right to cut off its gas at the place of bnsiness for a default' at"the dwelling-house of a consumer, to be unreasonable and ultra-vires. ■ But as before stated, however the court may resolve it, the solution cannot disturb the verdict and judgmeii't'iii the-Case.
   Mr. Justice Jambs

delivered the opinion, of the court.

This suit is brought to recover damages for injuries suffered by the plaintiff" in consequence of the cutting off the gas from his establishment on I) street in this city, by the. defendant, The Washington Gaslight Company. It appears that the plaintiff" had been residing at a house in another portion of the city, and that he had left there without paying his gas bill. When he moved into his I) street place of business he signed a contract, which will be mentioned presently,, with the gas company, for the supply of gas to that place. The company discovering that the plaintiff’s bill for gas furnished at his Tenth street house was still unpaid, demanded payment of this bill and threatened in the event of his failure to do so, to discontinue the supply at his store. The plaintiff" refused to pay the bill. As a consequence the company turned off" the gas, claiming the right to do sounder the following contract, which was signed by the plaintiff":

“We whose names are hereunto subscribed, agree to take gas from the Washington Gaslight Company upon the condition that the company reserves to itself the right to refuse to furnish or- at any time to discontinue gas to any premises, bbe'-owneit. or?,occupant ..of, which shall -be indebted to the .company-for, gas- or fittings, used upon such premises or else-,w.here.’> \y

- " The defendant, claimed tliat this contract gave it the rigM to. .turn off, the gas after it . had entered-upon a contract for its supply, because.of the previous delinquency occurring' ber fore .the-execution, of this, .contract and at another place. We have looked carefully at the terms of this contract and ,we-.are .of.-the opinion that it does not embrace such a case: ."We think the, words are to. be construed as relating toa delinquency,that .should, occur in the.future and not one having.already occurred..

■The qompany,,then,.having agreed to supply, the plaintiff with gas and entered upon the execution of that agreement, afterwards violated it by stopping the supply. We think this was a-breach of contract for which they are liable. Whether the amount of damages assessed by the jury is excessive .or not, the record does not .permit us to inquire into, and-the, judgment of the court below must therefore be affirmed. , . ■ ■

Mr. - Justice' Wylie,’

dissenting, said:

. This • case: presents- the . question whether a man who moves about from one house to another and runs away without paying his gas bill can compel the gas company to furnish him with gas at every new removal without-being obliged to pay his old bill. The plaintiff here was in default to the gas company for a bill on his Tenth street house The company then gave him notice that u-nless he paid this bill it would turn off the gas from his D street place. The plaintiff" refused to pay and the company accordingly shut off the supply of gas, and the court have allowed him to recover damages upon this state of facts.

It may be said that, because this gas company carries on a business analogous to that of a common carrier, it is obliged to furnish gas to every person who applies for it ; and yet it is laid down by all the authorities that even a common carrier may, for good reasons, refuse to carry for certain persons. Suppose that A, having Had His goods transported, should refuse to pay the freight after delivering at their place of destination, and then a few days after should offer for ship-roient another lot of goods to the same carrier. The latter might well say: “Pay for what we have already carried, and we will carry these.” But A answers: “No, you are a common carrier, and you must carry all the goods that I want you to whether I pay you the former bill or not.” Now will any court in a case of that kind mulct the carrier in damages because it refuses to carry for a man who refuses to pay his freight bill. I think there is no such law' as would require that. I put my dissent to this decision of the court, upon grounds entirely independent of the special contract entered into by the parties. My learned brethern are of the opinion that this contract relates to the future entirely. I think, however, a fair construction of that agreement would bring this case within it, but I do not insist upon that. I base my opinion upon general principles. The business of a gas company is in some respects like that of a common carrier, and a common carrier is not bound to carry a man’s goods indefinitely who refuses to pay up for past dues. And this company, I think, had a perfect right to say to this man, “We will not continue to furnish you with gas unless you pay up your arrears.”  