{ "id": 1564892, "name": "Donnell v. Brockman", "name_abbreviation": "Donnell v. Brockman", "decision_date": "1915-02-15", "docket_number": "", "first_page": "132", "last_page": "136", "citations": [ { "type": "official", "cite": "117 Ark. 132" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "70 Ark. 481", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1509518 ], "opinion_index": -1, "case_paths": [ "/ark/70/0481-01" ] }, { "cite": "59 Ark. 344", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1327728 ], "opinion_index": -1, "case_paths": [ "/ark/59/0344-01" ] }, { "cite": "91 Ark. 89", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1511802 ], "opinion_index": -1, "case_paths": [ "/ark/91/0089-01" ] }, { "cite": "70 Ark. 300", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1509479 ], "opinion_index": -1, "case_paths": [ "/ark/70/0300-01" ] }, { "cite": "31 Ark. 494", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879312 ], "opinion_index": -1, "case_paths": [ "/ark/31/0494-01" ] }, { "cite": "30 Ark. 128", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881101 ], "opinion_index": -1, "case_paths": [ "/ark/30/0128-01" ] }, { "cite": "24 Ark. 96", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726343 ], "opinion_index": -1, "case_paths": [ "/ark/24/0096-01" ] }, { "cite": "5 Ark. 595", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727776 ], "opinion_index": -1, "case_paths": [ "/ark/5/0595-01" ] }, { "cite": "91 Ark. 91", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 } ], "analysis": { "cardinality": 410, "char_count": 8654, "ocr_confidence": 0.407, "pagerank": { "raw": 4.313947448607103e-08, "percentile": 0.271620275931145 }, "sha256": "a4477906dc01234451dde12af5f2fa650deb0c81054da733961f743617c3e288", "simhash": "1:b20b0030e7542038", "word_count": 1495 }, "last_updated": "2023-07-14T17:56:14.924196+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Donnell v. Brockman." ], "opinions": [ { "text": "Kirby, J.,\n(after stating the facts). It is insisted that the court -erred in directing a verdict for appellee, and in permitting the introduction -of testimony -of the former owners of -the plant, -showing the uniform -collection of the minimum fee or readiness to serve charge -of all consumers using meters.\nAppellant had nearly twenty lights in his home, which at the flat rate w-ould have cost him fifty cents per month, -each, and by the terms of the ordinance the use of a meter could be agreed upon between the consumer and the company, \u201cand when such meter is used, the rate shall not exceed fifteen cents per kilowatt.\u201d Of course, appellant was bound by the terms of his franchise, and could not make a higher charge for electricity than that fixed therein, under the terms prescribed. It is a well-nigh universal custom, however, for -operators of electric lighting plants to -establish and demand a minimum service fee, or readiness to serve charge of all consumers using meters.\nThe -ordinance by its terms authorizes the parties to -agree upon the use -of a meter, and provides when such meter is used the rate charged shall not exceed fifteen cents per kilowatt. It is also tru-e that under the terms of the ordinance, if no meter was used, -appellant would have been required to pay a much greater sum per month for the lights in his house than the amount demanded by 'appellee. The franchise permits the parties to agree upon the use -of a -meter, and although it limits the rate to be charged for electricity consumed when a meter is used, to not exceeding fifteen cents per' kilowatt, it does not prohibit the right to contract or agree to pay so much per month as a \u00a1minimum fee -or a readiness to serve charge for the use of the meter, nor to -agree that the consumer will pay for -so much electricity -each month at the prescribed rate, whether that amount be consumed or not. Any su-ch agreement would not conflict with the provisions of the ordinance limiting the rate to be charged to not exceeding fifteen, cents per kilowatt.\nThe 'testimony of all the 'operators of the plant from its construction, shows the collection of this uniform monthly price demanded of appellant, which conduces to show that he agreed to pay such service 'charge, and was competent for that purpose. He, in fact, admitted that such was the agreement which he had performed for years and the testimony could not have been prejudicial in any event.\nIn Little Rock Ry. & Elec. Co. v. Newman, 91 Ark. 91, the court construed an act of the Legislature requiring gas and electric companies to furnish meters free of charge with tables of prices charged per thousand units for commodities consumed to be based upon readings of the meter, and held that the act did not prohibit the companies from making a minimum charge per month where meters were installed for readiness-to-serve, saying, \u2018 \u2018 The Legislature did not intend to compel the company to put in a meter and hold itself in readiness to serve for all who used none of the commodity to be supplied, and the language of the act does not warrant the construction that the fixing of the minimum 'charge was to be forbidden. * * * The fact that the charge for meters is expressly forbidden negatives, under the maxim expressio unws est exclusio alterius, any intention to forbid any other charge uniformly made against iall patrons using the same quantity of the commodity.\u201d\n\u201cA regulation of the charges for such service should be just to the company, as well as to 'all patrons, so as to allow compensation to the former and reasonable, uniform rates to the latter, according to the amount of the commodity consumed. One class of patrons should not be favored at the expense of 'another.\u201d\nThe testimony shows the operation of the light plant herein had never been a paying, but was a losing, proposition.\nThere being no prohibition of the right to contract for a minimum monthly charge for the use of the meter, nor to agree to pay for a minimum amount of electricity \u2022at the prescribed rate, and the testimony being undisputed that such contract was made and performed for a long period, appellant can not insist upon the use of the lights without the payment of such charge.\nNo error was committed in instructing the verdict, and the judgment is affirmed.", "type": "majority", "author": "Kirby, J.," } ], "attorneys": [ "Sam B. Chew, for appellant.", "J. D. Benson, for appellee;" ], "corrections": "", "head_matter": "Donnell v. Brockman.\nOpinion delivered February 15, 1915.\n1. Electricity\u2014readiness to serve\u2014minimum charge.\u2014A city ordinance, which provides that where a meter is used in the service of illuminating electricity, the irate charged shall not exceed fifteen cents per kilowatt, does not prohibit a consumer from contracting with the light company that the consumer will pay a rate per month of $1.50, as a minimum fee or readiness to serve charge, whether an amount of electricity of that value be used or.not.\n2. Evidence\u2014electricity-\u2014minimum charge.\u2014A city ordinance provided that -consumers of electricity could be charged only at -the rate of fifteen cents per kilowatt in the event a meter was used. Defendant, who supplied electricity, fixed a \u00a1minimum rate of $1.50 per month, irrespective of -the amount of electricity used. In an action to -collect the charge of $1.50, where defendant claimed the charge to he in violation of the ordinance, evidence that .such a rule and regulation had -been in force since the establishment of the light plant was admissible.\nAppeal from Franklin Circuit Court, Ozark District; Jeptha H. Evans, Judge;\naffirmed.\nSTATEMENT BY THE COURT.\nGeorge Brockman brought this suit against John Donnell, in the justice court in Franklin County to recover $1.50 for electric light service for the month of June, 1914. From the judgment against him, he appealed to the circuit court, where upon trial the court instructed a verdict in his favor, from which this -appeal comes.\nIt appears that the appellee is the owner of the electric light plant at Ozark, which -supplies that town, Altns and Denning. He purchased the same at a receiver\u2019s -sale.\nHe testified that he was charging the same rates to all consumers and following -the regulations prescribed by his predecessors in the operation -of the light plant; .that he charged $1.50 to -all persons upon meters, a minimum fee-, or readiness to s-erve charge, whether the amount of electricity consumed at the prescribed rate equaled that or not. The manager and owners .-of the light plant before him, as well as the receiver, testified that they had charged the -same uniform price to all consumers of electricity where meters- were installed. This testimony was objected to -as incompetent.\nThe appellant himself 'testified that he had installed lights and a meter in his home when it was constructed about seven years before, and that he had always paid the price 'charged him, which was a minimum of $1.50 per month, without regard to whether the electricity consumed equaled that amount at the prescribed rate; that he paid this charge supposing it was being made in accordance with the ordinance of the city granting the franchise, until 1914, when he learned of the provisions of \u25a0the ordinance and refused to pay the charge of $1.50 per month, and was willing to pay only fifteen cents per kilowatt for the electricity shown to be consumed by the meter. *\nThe franchise was introduced in evidence and shows the maximum price allowed to be charged per month for sixteen candle-power lights, $1 each; two lights, $1.50; three lights, $1.80, and four (lights or more in one building, price not to exceed fifty cents per month each. Section 6 provides: \u201cThe use -of an electric meter may be agreed upon by and between the said company ,and the consumer, and when such meter is used, the rate shall not exceed fifteen cents per kilowatt.\u201d\nAppellant had nearly twenty lights in his home, according to the statement of appellee, and about nine or ten, according to his own statement.\nSam B. Chew, for appellant.\nThe ordinance introduced in evidence was the law and the 'Contract between appellant and appellee, and was the sole means by which the amount appellant owed could be ascertained. 5 Ark. 595; 24 Ark. 96; 30 Ark. 128; 31 Ark. 494; 70 Ark. 300.\nJ. D. Benson, for appellee;\nBy section 6 of the ordinance, the basis upon which a consumer may have a meter is left open for agreement between the parties, the only limitation being that the rate shall not exceed fifteen cents per kilowatt. Such being the case, if a consumer desires to use a meter, the company has the right to fix the terms and conditions upon which it will agree to the use of the meter, and to fix a reasonable minimum, rate therefor. 15 Cye. 470; 91 Ark. 89; 59 Ark. 344; 70 Ark. 481." }, "file_name": "0132-01", "first_page_order": 158, "last_page_order": 162 }