
    No. 8696
    COURT OF APPEAL PARISH OF ORLEANS
    MRS. LUCILLE REY versus NEW ORLEANS GAS LIGHT COMPANY.
   Dinkelspiel; J.

we quote from defendant's brief which we consider is a statement of fact „hown by the pleadings:

"This is e. suit by Lucille C. Hey against Sew Orleans Gas Light Company for damages for cutting off of gas servios.

The petition avers that the defendant entered into an agreement with plaintiff to supply her with gas for cooking and illuminating purposes at her residenoe in the City of New Orleans, end to determine the quantity of gas consumed hy her the said Company installed in the house occupied hy her a prepay meter so constructed and arranged that hy dropping a twenty-five oent piece in a slot in said meter gas to the value of twenty-five (35$) cents could be used; that on October 18, 1931, the agents, employees end representatives of the defendant, acting under orders e.nd in the course of their employment, called at the residence of plaintiff and, after announcing their intention to out off the gas supply end to remove therefrom said prepay meter, upon the refusal of the defendant to permit the removal of said gas meter, they went under the house in 'which petitioner resided and disconnected the pipes through v/hion the gas. flowed or was carried from the supply pipes or mains in the street to eaid meter inside petitioner's residenoe, thereby cutting off.the gas; that the aot of defendant's agents end employees was deliberate, malicious, illegal, without warrant of law, and done -with the intent to cause injury and damage to plaintiff; that plaintiff notified the company of its said employees' action, hut the iefendant refused to reconnect said ¿as; that plaintiff has been seriously damaged' and injured by the defendant in cutting off and depriving her of the use of gas and prayed for damages in the sum of §750.00.

Defendant denied that it nad bntered into any agreement with Lucille 0. Hey, plaintiff herein, for.fthe furnishing and supplying cf g:.e for cocking end illuminating purposes. Io ; d:..l Vur-i r.h"5 under do te of January 19, 1913, one ¿Ira. A. Hoy «¡¿.l? ...pplio ticn So it for ¿as servios at the prei..i ¿o? Jo. 304 South Tel-rm-.chus Street, which appllo tier, v/vs uooeptid by defend nt i-nd, in eiocordfnoe therevith, t yreyiv .meter for the purpose of measuring the quantity cf g-s o: noumed installed. It denied ell other allegations of the petition, esespt th?t it 'dmitted thf-t on October 18, 1931, it3 employees, under i bs orders, celled '•■t thr residence . bov= seated for the purpose of cutting off the g--s supply an.l removing said prsp-.y meter, and upon r=fu3..-l -f 1-idy cn the prsmis to permit the removal of slid prepay mater, ditcem.eebed the servios pips under said premises Is-ding to a.-id meter, thereby cutting off sui-:. g. 3 su,.ply. Defendant averred th:t before cutting off the g.ia service cn a. id premises Jo. ¿04 South Jslsmtohus Street, due -a., nd *' a ...ule by it upon the .id lira. A. Rey for p.yj..snt of a balance aue for gas consumía ‘•t s&id premises nd '-rue notification given thf-t upon failure so pey, the gas service would be out off, rnd tht-t it me fully justified in cutting off said service."

Ihe testimony in this case is ¡tore or less admitted.

It is admitted that olein tiff applied to defendant for gr.s service at the residence 304 South Telenmehus Street on e prepay basis,'that the application was accepted and meter installed, that the meter vies a prepay meter and was constructed end arranged that by dropping a. quarter or twenty five cent piece in the slot in said néter, gas to the value of twenty five cents could be used by the applicant; it has been proven that in the latter pi rt of June, 1931, an employee of the defendant called at the premias-, for the purpose of changing the meter;tint he took out meter lío. 31636- and installed therein metsr Jo. 33191; tíu-t cn th'-t ds.y, the raiding of said new meter v¡;.s 449, and a memorandum m-'.de of said reading at the time; thit subsequently, July 23i . : 1 rxaing of the said meter wes 486 a difference . J71K jujío feet, showing #5339 of gas consumed and thr.t there .■ , --.t the t time only seventy five cents in said meter when the stripper took the money out of ssme; arid subsequently, August 33nd, 1931, ssid meter reading wss 533 or % difference between thet and the prior reading of July 33nd,---of 4300' cubib feet of gas, showing #6.64 of gss consumed and that the meter stripper' found in August only seventy five cents in said prepay meter. Subsequently the defends-nt sent one of its employees Uo said premises about August 29th, 1931, the purpose being to chenge hx the meter, this employee took out arid meter besring Ho. 38191 and installed meter Ho. 49469; the reeding of the-meter 33191 removed on that day was 539, or a difference between thi-t and the reading on August 32nd, 1931, of 1100 cubic feet cf gas, showing §JL.24 gas consumed, the meter xxa'lio. 38191 was nor stripped on the premises but- was taken to the shop of .defendant and turned over to another employee who verified the reading of said meter, stripped the some found no money at £.11 therein. The reading . cf June 39th, July 32nd, August 2Snd end August 39th, showed g-s consumad to the total amount of #13.67, and' the mcney in said meter being only #1.50, left e, balance cf #13.17 due by the plaintiff.

It is further shown thst by letters written on different dates commencing September 15th, 1931 end again on September 33rd, 1921, plaintiff wos informed that unless sii-i bill was paid in three days the meter would be removed; subsequently again on September 38th, 1931, the meter wes ordered removed., plaintiff refusing to permit-the removal of said meter. On October 10th, 1931, a letter '.;vs written to her that unless the bill was paid, service would be di.-.continued; to all these letters plaintiff .cut off ✓ pcia no attention, sc thi t a/ssatit order was issued October 14th, 1931 end on October 13th, 1931, the bill not hs.ving b?sn paid, servios was cut out.

Plaintiff's briaf end in Jure the argument does not c-uo;.ni. sh: í .. public service ccrpcr- "ion i3 obliged cc do business on credit or tc r.-r. hr service c.nd then it for p'vr.c.ut /..nd through She entire evidence in -b.sh- If of plaintiff, ;;.:cting from pi-.intiff1 s bri-.f:

"Thor.: is no disput; r^-g--.■ding the f"Otj in chic c'ft and She (¿uestlcn submitted for decision is on; cf l-w."

In s recent c~<>; lidded by the District Ourt ml /. ttsc’y-d ■. s >:. p- rt cf defend-nt1 s brief, is 1 copy of tfcs opinion of the learned Judge, ;hs Honorable Hugh C. Cage, in the r.-,;e cf St'-te sx R-l George .'lontgciuc-.ry, versus hew Orleans O s Light Coir:p>-ny, being Do. 135310, 'which opinion f.nd decision v/e <;uote in full:

"In oammunities living under our modern civilization, especially in ls.rgs cities, there are certain public services, which, in themselves, are natural monopolies, and, whether are so recognized in ls.vz and made monopolies by law, or whether the lav/ ignores end lets the., work out the social or .natural low, they in the end resolve themselves in monopli--s. The service of -.zater to the City did rss'.lve itself into e monopoly, even if it were net mode so by lav. The 'telephone service, if throv/n wide open tc the public, would, and does, in ever;' case wind up in one corporation furnishing che service. A statin railroad ’.vithin a distance, of twenty miles on etch side of it his -- natural monopoly, and if a n-.-'.i one was tc be built within twenty miles, one would die or he absorbed by the ether. The furnishing of gas is a n> turel monopoly, and in every one of these natural monopolies is prim.rily the duty of the sovereign to furnish this servios. The sovereign has-the option either to furnish the service itself, end own, añd/operate it, or, when he does no t choose tc do this, be muet.-farm it out to a contractor, generally called public; servios corporations. "The f-= rrner or contractor undertakes'under his' contract to perform the service-, thst were encumbent upon; the 'sovereign, under the contract thi.t he makes with the.sovereign, and obtaining certsdn rights: end certain s^Sgátions of .the citizens ■to-'/ ids the firmer, and cert; in rights .-.no. certs ir. oslig— ticr.s of the f-r-ier tow; id the citizens, „ui the Court will enforce th¿_. cn both sides.
The testimony' b.efors, :.v„ shPi'a tu t thor-. is no method known tc hurmn kind, in its present s't'gc. progres», for it? curing the amount of go s consumed, except the g;-sem?tcr; 'that g'sor.iet:r~, c'f st n:l*rd correctness ore used through all the United States, and, for th; t matter, all through the civilized world. Bo other method, os I s;,.y, of measuring th? i-mount of g's consumed hr a been found, except the in;; orumrat known &s meters. They, like all humvn invention:: js liable to error-to get -out of order snd fail to register correctly, and there s.re instruments kno.m =-s "ttet-.i's, " by which th- correctness of the g 3omet=r is tested, =nd these instruments --.re recognized by evr-rone, .,nd were in the conté;,-.pit tion cf the sovereign when it granted this ccntrr.ct tc perform this service, to the farmer. As I .s*y, this instrument n-'csss; rily '»/-■. a in the con tempi; tion of the sovereign, when the contr; ct v; $ mí-.ás with the defend* nt in this c-:-?, th:t is, th? legislative rot by which the service v.s farmed out -ml the i-cnopoly given. The oblige ticn cf the farmer or contractor in this cr.ce, rr-~ tc furnish g- s to the inhabit, nts of the City cf ’lev; Orl-'na, it w-3 its duty end obligeticn so to do, end in the same oor,tr---ct it was stipulated th-t it should h* vs the right tc ch-rgs therefor to the v-'-ri'-uc obreum-re net in excess of §4.00 per one thousand cubic feet. The v-»ry me'-ning cf the contract taken as n whole is th.-.t the cenerector is boxuid ;-nd obligated tc furnish this gr-s tc the citizens of Kev; Orleans, tout not free, he must be p-.'id for it. The citizen hv.s r. right to-exact the fxirnishing of G--3 on paying for it, and it is impossible to hold thi/t this-contractor is obligated to furnish g-se without pay. Dealing with* these matters, it is necess-ry th. t corns methods, rules and regulations should b-s made whereby the time .-'nd method cf payment, sh5.ll be governed. I'or example, re ‘Sonable’ time limit within which the payment of bills ■ 11 be i-c.ae, w----kly, monthly, quarterly, ee..iit'ririw-lly. ,-r annually. There is nothing that has been suggested x- me thet the monthly payment is not i. re.-sonable •ifegui tica. If that be the cr oe, end I think it is, then, when a months supply of g?s has been served by the oontraotor, to the citizen, it is the duty of the citizen to ps.y for it. The amount th-.t he h?s oonsumed can only be established ss I said, by asms of this instrument■ called a meter. When the meter re-ooras ? certain amount of gvo, the contractor - the grs ccm.x-ny - -has the right tc presum that the citizen has used that «.mount of grs.. If the citizen is under the impression that he h-s not. used thrt amount of gas, the only method of de berminiilg that f-. ot ?s to whether or not he owes for the ntímb-r if thcu^r.ds of feet cl'i'-imed from him by the gi ;• con,.;-/, ■ x.-ot the meter. Vihen the ~,?st is mr.Ae, cn hie =: te...: ; chat he doss net believe tiu t he owes the amount claimed -.i- ¡m hiju.s.nd the meter tests out correoxly, I o-nnet ccn..-. 1 Of any proof of evidence th-1 cculd overcom.- ouch o . . How would the Courts, in view of the t- ■xL.m.’y 1 .-.for; it, xhst the meter ' •> th? only fcnc’im method : ' ..-t r...'.r' ’■ amount of g! 3 consumed, take ‘-ny c :r'-r .- i’ fore, as I have s"id, when the moor’ t ’ ■ e V.-.-!n fi;:"d, and'the citizen r-: fuses to .. ■ ,r then demands ti further service, he is not, ■. icl.n m-ining the contract between th-. ..v reign and the f':.r..,-.r, «hioh oonxrsct only oblige-, eh-- : rm-.r to furnish the servio-upon being paid for it by th* citizen, „r,-i che regulv. cion or rule of conduct by' which the public oontr'otor -./«uld refuse to give further service seems to 'icé tfljsoluoely reasonable, s.nd the only effe-otive way by which xhe.business oould be carried on for the benefit of the whole public. The oitizen would have his remedy. He oould, where an apparently unusual bill 'was ,, rented to hi^,deiu-n-i a 6-, st. He. could in vs the test ■... ids, and if his meter • ■ ¡s .vrcr.g, it ‘-culi be immediately seen, end the matter would be adjusted, but if he was shown flu t the bill was wrong by testing the meter, and the oontr.-ctcr - the gas company ¡A should then .lem- nd ch-.t he pry it or h*ve his gas out off, an entirely different b‘ ss would 'os presented, because then the citizen "would be within his right under the contract me-de by th»- sovereign that he steed re^dy end willing to pay for the service ih"t vr5'a rendered. Therefore, he would have til rh.- rights given to him under the cowraot, but, if he r to pay for the services rendered to him, -the contri ct itself does not require the contractor to render services, without pay.
low, in thí3 c;ue, the relator is evidently in.-good, filth in oelieving th-r his bill is exhorbio-nt. He protested. The gv., o--mp!ny had his m,:ctr rested to find out wnether.his impre-.,i'n ik ; his bill '..us improper \n,s founded en facts., A test u, Us by ike... with me most t_._,roved method, showed th t '.i :u- surer or -etsr w s in 'urfsot order, or slightly ir. f-vor of the couaui.-ir; : n-i, ;h- t, tlnrifore, the amount" of g s th t it registered >/.,s the amount thst h:.d been used, and the 'mount w's tsxx due tc them.
Under the circumstances, the gss company having tre; tod i i: alike, the millionaire ¡.nd the pauper the same,, it w.~e right • nd proper -th-.’t it should apply the same itethed to Hr. Montgomery, the relator, in a $35,000 building and the poorest person in Kew Orisons, occupying the barest tenement. Any other ruling would require the gae company to bring suit for $1.50, $10.00 or $13.00, against thous- ■ r ts in the Oity, and the Courts would be clogged rendering carrying on of the business of the Courts pr .otioa^l, v.ble.
In my opinion, the mandamus should be di-.charged.11

We also refer to the case cf Annapolis Public Utilities Company vs. Martin, 103 Atl. 465, decided by the Court of Appeals of Maryland, in. which it wee held:

"In a consumer's aotion against a gas company for wrongfully and without just oause shutting off hi's supply of gas the burden was ón plaintiff to offer evidence legally sufficient to•show that he was not indebted to the gas company for gas supplied to the premises át the time the supply was shut off; for, unless such evidence was offered, there w~s a failure of proof to support the allegations of the declaration that the supply was wrongfully and without just cause shut off.
friere a consumer of gas used approximately §33.00 worth during a month, but his- meter contained about . only/fll.OO in quarters in payment, so that he was indebted to the .gas company -in about §13.00 for gas consumed on his premises when the meter ví&s removed by the oompany without unneoessary force or disturbance, after his failure to pay by e fixed date on notice, the oompany was not liable as for wrongfully shutting off the consumer's supply.of gas."

To the same effect is Bertram vs. Pacific Gas & E. Co., P. U. R. 1916, C., p. 410 at 413.

Also see Southwestern Tel. Co. vs. Danaher, 333 U. S. 488.

The oases referred to by plaintfff, Bettis versus Singer Sewing Machine Co. 10 Ct. of Appeal. 373, and Greenlee versus' Singsr Sewing Machine Co. ,10 Ct. of Appeal 373, where it was held:

"This is-not one of the mides provided by.law to' enforce payment of past due installments on artioles purchased, and parties resorting to such arbitrary methods, end deliberately substituting.violence for law, should-be made to feel the,'weight of judioial condemnation. 1

• And. the-.contention^ made- by- plaintiff,-' demanding ; damages, for the reason that- defendant resorted to arbl--. ■:.tB«&ry-method's to -enforce;--.payment of; a claim it-assumed' • .was'due ..by'the plaintiff* maintaining that' the defendant' ■ hsid .taifcen the. law -into, its., own - hands instead of taking the process provided by law for enforcement of the abligiw tions of plaintiff; in our opinion, is not the correct doctrine, this not being a oe-se of trespass, but being a •os-'se under a contract between the parties, 'which gave the right to defendant, ta in case of default or nonpayment for gas furnished, to stop the flow of gas •:-'nd the use thereof after repeated demands had been m--i.de on plaintiff to pay what was due for use of the gus and which plaintiff refused to pay.

conclude We conclude therefore, -that under the-authorities end trader the admitted statement of facts in this case that the.defendant company had the legal right to cut off the gas supply from plaintiff's residence and to remove the meter; and, therefore, plaintiff having under .her contract agreed to comply with all the conditions of svid contract end having failed to do so, although repeatedly requested and having been we.rned-cn three different- ocoaasions by letters admitted to heve been rer ceived, to p?-y wn&t was justly due, the cause of action ssiim claimed in this suit for demages cannot be allowed.

For the reasons assigned, it is ordered, adjudged end decreed, tfet the judgment of the Court-aquo be end the e#me is hereby -affirmed, with costs of both Courts to be paid: by plaintiff.

-Judgment affirmed-.

June 19th, 1922.

Claiborne, Judge.

CONCURRING OPINION.

I do not believe that the plaintiff owed the ampwnt of gas claimed by the defendant. She did not agree to pay for the gas that the meter, showed she had consumad; she agreed to buy as much gas as the company would furnish for the 25 cts she dropped in the slot not one f»ot more, and she paid for amount in advanoe. If the company supplied more than a quarters worth of gaB, It was its loss. But I oonour in the decree on. the ground that there was a difference between the amount of gas consumed for the 25 cts and the amount registered as consumed "authorized the immediate removal of the meuer". Such 'a regulation was reasonable and legal, although printed on the plaintiff's application for opening gas, and in type so smell as not to entitle it to favorable consideration by courts.  