
    Vicksburg Waterworks Company v. James M. Dutton.
    [53 South. 537.]
    1. Waterworks Company. Discomiecting premises. Liability. Exemplary damages.
    
    Where a waterworks company disconnected a customer’s premises from its mains, in violation of its contract and of its duty as a public service corporation in consequence of the gross inattention to duty of an employe in its office, the question of its liability for punitive damages was for the jury, although the company’s manager, on discovering the facts within four hours, - admitted the mistake and offered to reconnect the premises and the customer refused ¡the offer, affirming that he would make the company pay damages.
    2. Same. Same. Excessive damages.
    
    In such case a verdict in plaintiff’s favor for live hundred dollars is excessive, it should not have exceeded one hundred dollars.
    .From the.circuit court of Warren county.
    Hon. Charles S. Thames, Special Judge.
    Dutton, appellee, was plaintiff in the court below; the Vicksburg Waterworks Company, appellant, was defendant there. From a judgment in favor of plaintiff for five hundred dollars, the defendant appealed to the supreme court. The opinion of the court states the facts of the case.
    
      J. G. Bryson, for appellant.
    The testimony in this case is not sufficient to warrant the submission of the question of punitive damages to the jury. There is no testimony tending to show malice, willful oppression or wanton wrong, and without such testimony it was improper for the court below to submit the question of punitive damages to the jury. Chicago, etc. B. R. Co. v. Scurr, 59 Miss. 456.
    It will not be contended that there was any abusive, insulting or profane language used, or any threat made by the waterworks company employes, appellee’s reliance for verdict being upon'the simple fact of the cutting off of the water after his payment of water tolls.
    The rule laid down in the text-books is clearly to the effect that punitive damages are not recoverable, regardless of the motive which actuates the party whose action is complained of in cases involving a breach of contract and nothing more with one exception, namely, contracts for marriage. 12 Enc. (2nd Ed.), 20; Southerland on Damages, par. 393; Hay v. Ganoble, 34 Pa. St. 9, 75 Am. Dec. 628. All of our cases do not seem to make this distinction and some apparently allow punitive damages for a breach of contract solely where the motive inducing the breach was willful or in reckless disregard of the rights of the injured party; but in each and all of the cases of this kind, there is an underlying duty imposed by law to do the things contracted for. While there is a duty on public service corporations to serve the public, it is only a duty to enter into a contract to serve, and when the contract to serve has been entered into and broken, it does not justify an award of punitive damages unless some duty imposed by law in addition to the duties covered by the contract has been likewise breached. This would narrow the field for the recovery of punitive damages to some extent and would probably exclude some of the cases in which this court has sustained the award of such damages.
    If this court should consider this a case'of punitive damages in view of all of the circumstances connected with it, the award was excessive and it was the duty of the trial court to cut it down on the motion for a new trial and having failed to do so it is now the duty of this court to do so.
    
      Brunini & Hirsch, for appellee.
    When the water was cut off at about nine o ’clock of the morning, it became absolutely necessary for Dutton to supply himself with water for -his machine shop. It was necessary for him to employ two of his men to carry up the water from the canal, some distance away, in order to keep his engines going. Dutton testified that the use of the muddy river water, thus taken from the canal, left a sediment in the engine, and caused him to have to take the engine to pieces and clean the parts, all of which put him to heavy expense for labor and in loss of time. The evidence shows that a representative of the waterworks company went down to Dutton’s place of business to turn on the water from the waterworks company’s hydrants again, this being-between noon and one'o’clock of the afternoon, and Dutton refused to let him turn on the water, telling the representative that he, Dutton, was going to make the waterworks company pay for the damage which its action had caused him. Under the instructions of the court the jury brought in a verdict against the waterworks company. ' •
    The wrongful act of cutting off the water, when appellee was in no way delinquent for water dues, was done with full knowledge on the part of the appellant that Dutton had paid his water tolls for the month of May, the month not yet being ended. The evident intent of the waterworks company was to force Dutton to sign a new application for continued use of the water on terms desired by the company. Appellant acted arbitrarily, and with knowledge of the appellee’s necessities for continued supply of water, and its action in thus shutting off his water supply made the appellant liable in damages.
    If there were any explanations to be made in regard to. the visit by the company’s representative when he went down to appellee’s place of business to cut off the water, it was certainly incumbent upon the representative to make them at the time or subsequently on the trial. When the water supply was cut off very few words were spoken, there were no negotiations by the representative with Dutton. Dutton was merely told that the water must be cut off because he, Dutton, had refused to sign application to the waterworks company on the day preceding.
    Where a breach of contract amounts to a tort, there may be a recovery for exemplary damages upon proper allegations. 12 Cyc. 20.
    If the tortious act of the agent or servant when committed in the business of the principal or master is such as would have subjected the agent to exemplary damages had he been sued for the misconduct of the agent, then the principal or master is liable precisely as if he were the original wrongdoer, although personally and individually he may have been entirely blameless or innocent of anything deserving of punishment. 12 Cyc. 31.
   Anderson, J.,

delivered the opinion of the court.

Dutton, the appellee, sued the appellant, the Vicksburg Waterworks Company, a public service corporation, engaged in supplying water to the inhabitants of the city of Vicksburg, for willfully and unlawfully disconnecting his premises from, appellant’s water mains, and recovered judgment for actual and punitive damages in the sum of five hundred dollars, from which judgment this appeal is prosecuted.

The material facts in the case,, about which there is no dispute, are that appellant, in violation of its contract with appellee, as well as its duty to him as a public service corporation, through the gross inattention to duty of some employe in its office, disconnected appellee’s premises from its water mains; that as soon as the manager of appellant company discovered the mistake, and within three or four hours after the water had been disconnected, he admitted to appellee such mistake, and proposed to reconnect his premises, which appellee declined to permit, stating that he proposed to make appellant company pay him damages for the wrong done him.

The court committed no error in submitting to the jury, by the instructions complained of, the question of punitive damages. However, under all the facts and circumstances of this case, the verdict of the jury is so excessive as to evince passion or prejudice, and on that ground, if the appellee does not enter a remittitur reducing the judgment to one hundred dollars, it will be reversed; otherwise, it will he affirmed. So ordered.  