Fair v. Home Gas & Electric Co.
Before: Shaw
Synopsis
Statutory Penalty—Refusal of Gas to Consumers—Distance of Building from Main—Presumption—Proof at Time of Trial.— In an action under section 629. of the Civil Code to recover the statutory penalty therein prescribed for the refusal of a gas company to supply with gas the building and premises occupied by the plaintiff, distant not more than one hundred feet from any main, where it appears that the main was laid several years prior to the application, which was one year before the trial, as no evidence was introduced to the contrary, it will be presumed that no change was made in the location of the main, but that its condition as laid continued at the time of the trial, at which it was proved by a civil engineer without conflict that both the building and premises were less than one hundred feet from the main, and such proof was sufficient to sustain the action.
Id.—Support of Binding of Location When Application was Made.— It is held that under the facts proved and presumed, evidence of the location of plaintiff’s building and premises shown to exist at the time of the trial sufficiently shows its location and distance from the main at the time of the application for gas, and supports the finding made by the court in this regard.
Id.—Arbitrary Discrimination Against Plaintiff—Requirement of Security—Support of Finding.—Where the defendant’s answer admits and the testimony of its secretary shows that the gas company had no rules or regulations as to the exaction of a deposit or bond as a condition of supplying customers with gas, a finding that the exacting from plaintiff of a cash deposit or bond as a condition of supplying him with gas was an arbitrary discrimination is sustained by the evidence.
Id.—Purposes of Use of Gas—Question as to Lighting Purposes— Objection for First Time upon Appeal—Finding.—Where, when the demand for a supply of gas was made, defendant raised no objection that it was not specified for lighting purposes at the trial, such objection should not be allowed upon appeal for the first time, even assuming, as claimed by the defendant, that the statute has reference only to the supply of gas for lighting purposes, especially when the court made a finding, which is not assailed, that at the time when the demands were made, plaintiff was without illuminating gas.
Id.—Improper Order Granting ISTew Trial—Reversal.—The court having committed no error, and its findings being sufficiently supported by the evidence, it is held that it improperly granted a new trial to the defendant, and its order must be reversed.
SHAW, J.
This is an appeal by plaintiff from a general order made by the court granting defendant’s motion for a new trial.
The suit was instituted to recover the statutory penalty provided by section 629 of the Civil Code, which is as follows: “Upon the application in writing of the owner or occupant of any building or premises distant not more than one hundred feet from any main, or direct or primary wire, of the corpora
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tion, and payment by the applicant of all money due from him, the corporation must supply gas or electricity as required for such building or premises, and cannot refuse on the ground of any indebtedness of any former owner or occupant thereof, unless the applicant has undertaken to pay the same. If, for the space of ten days after such application, the corporation refuses or neglects to supply the gas or electricity required, it must pay to the applicant the sum of fifty dollars as liquidated damages, and five dollars per day as liquidated damages for every day such refusal or neglect continues thereafter.”
By appropriate allegations plaintiff brings the case within the provisions of the section, it being alleged, among other things, that plaintiff occupied a house and premises in the city of Redlands, known and designated as No. 536 Chestnut avenue, which house and premises were during the times in question distant not over one hundred feet from one of the gas mains owned and operated by defendant, a corporation engaged in the manufacture and distribution of gas to the inhabitants of said city; that on July 29, August 14 and August 24, 1908, plaintiff made demand in writing upon defendant that it supply him with gas for use in and about said house and premises, but defendant refused to comply with such demand, unless plaintiff should give a satisfactory indemnity bond or make a cash deposit to protect defendant from any loss which it might be subjected to in connection with the gas service, and to insure the preservation of the meter; that such exaction as a condition of supplying gas to plaintiff was an arbitrary discrimination against him; that for the period extending from June 26, 1908, to the time of the filing of the complaint, plaintiff was without the use of any heating or illuminating gas. In its answer, defendant, among other things, denied that said building so occupied by plaintiff was at any of the times mentioned in the complaint distant not more than one hundred feet from its gas main, but made no denial of the alleged fact that the premises were within one hundred feet therefrom; admitted the making of a demand for a bond or cash deposit as alleged, but denied that the making of such demand was an arbitrary discrimination against plaintiff; denied that plaintiff had been without gas for illuminating or heating purposes subsequent to June 26, 1908; and further answering alleged: That it had at all times been ready and willing to supply plain
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