On appeal from a judgment of the District Court of the Second Judicial District of Monmouth county.
For the plaintiff-appellee, Parsons, Labrecque & Borden (Theodore J. Labrecque, of counsel).
For the defendant-appellant, Autenrieth & Wortendyke (Reynier J. Wortendyke, Jr., of counsel).
Before Justices Case, Donges and Porter.
The opinion of the court was delivered by
PORTER, J. The plaintiff seeks to recover damages in this suit against the defendant, alleging a wrongful act in its refusal to supply electric current. The plaintiff received a verdict of $300, and from the judgment thereon, the defendant brings this appeal.
From the testimony it appears that the defendant was a public utility company furnishing electric current to the plaintiff at his place of business, and that in January, 1937, the plaintiff received a bill for electric current sold to him and for which he paid on January 19th, 1937. In February, 1937, he received a bill which again charged him for the current paid for on January 19th. On February 23d, he informed the defendant's cashier at its office that he had paid the January bill, but was unable to find the receipted bill or to furnish the date when it had been paid. The cashier thereupon examined the records of the defendant and informed the plaintiff that the records failed to show the payment. He thereupon paid $3.42 for the February item and received credit on the bill for the same, showing a balance due of $3.60 for the January disputed item.
The next day he received a notice in writing from the defendant that he was in arrears and that if payment were not made before February 27th, service would be discontinued. He continued to search for the missing receipt, but without success. On March 1st, the service was discontinued, and shortly thereafter, a couple of hours or so, the wife of the plaintiff found the missing receipt. On the same day counsel was engaged who advised the defendant by letter that the receipt was in his possession. After an exchange of letters between counsel and the defendant, the receipt was seen by the defendant and the service resumed. However, this exchange of letters took several days with the result that the plaintiff was without service from March 1st to March 6th.
There was testimony that the plaintiff conducted a summer restaurant or grill and at the time of this interrupted service was making alterations preparatory to opening his business for the season; and that he was inconvenienced and delayed
by the lack of electric current and was unable to open for business for two weeks past the time he had intended.
The theory of the plaintiff was that the action of the defendant in discontinuing service under the circumstances was a breach of a duty owing to him by the defendant, and hence the action was brought in tort. The defendant defended the action on the ground that an action in tort would not lie, and that if anything, it should have been in contract. The same contention is made here.
It is the settled rule in this state that a public utility is under a duty to furnish its service impartially to such of the public who may pay for it, under proper rules and regulations. In the case at bar the defendant utility was furnishing such service, indeed it was doing so under contract. Hence, when it discontinued service where, as here shown, payment had been made for electric current previously sold and delivered, there was a breach of contract by the defendant. Whether or not there was also a tortious act committed upon which an action for ...