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mit him to sue for others similarly that their bills would be paid, and situated as himself
more than 90 per cent of its patrons On behalf of the city, in accord- were never even informed of the exance with its prayer, the defendant istence of such a rule, but their acwas enjoined from enforcing the counts were guaranteed for them, rule requiring deposits as a condi- without their knowledge or consent, tion to service against any citizen, by an employee of the defendant, unless enforced against all.
The Mr. Edward I. Redding, for which plaintiff, Barriger, appeals from only service the company arranged, and so much of the judgment as refused paid him a commission upon the him the right to sue for all and for amount of the bills guaranteed by an accounting on their behalf, and him. the company cross appeals from so The net result of this rule was, much of the judgment as holds the therefore, that about 10 per cent of rule discriminatory and grants the citizens of Louisville who were plaintiff any relief. The city has patrons of the company which furnot appealed.
nished them gas and electricity unSince it is conceded that neither der a franchise from the city were the plaintiff nor any of those for required by a rule of the company whom he sought to sue was entitled to furnish a cash deposit or written to any relief unless the rule under guaranty as security for their acwhich the deposits were required by counts, while the remaining 90 per the company was discriminatory, we cent of its patrons, by the same rule, will consider it first. As set forth were not required to furnish secuin defendant's answer, it is as fol- rity of any kind for their accounts, lows:
and all were charged the same rates "All persons applying for gas or for services rendered. Stated othelectricity will be required either to erwise, for the service rendered 10 deposit an amount equal to the esti- per cent of its patrons the company mated cost of forty-four (44) days' received full contract rates, plus an service, or to give the written guar- enforced loan, while from the rest anty of someone known to the com- of its patrons it received only the pany that their bills will be paid. contract rates, less the commission Where deposits are made a receipt paid to Redding for guaranteeing for the amount will be given, and in- their payment. If such an arrangeterest will be paid thereon at the ment does not give to the 90 per cent rate of 6 per cent per annum.
preferential treatment, and is not “In the case of consumers who therefore discrimihave previously used the company's natory against the Garrule reservice and have paid their bills reg- less favored 10 per for service-dis.
cent of its patrons, validity. ularly, the company has arranged with a responsible party to guaran- we do not know how tee all such bills.
it could be accomplished. “The company will accept as guar
Since counsel for the company antor any customer who has used concede that under its franchise its service in an amount as great contract with the city it must treat as the consumer proposes to use it,
all of its patrons alike, and that the and who has habitually paid his rule, which is its only justification bills; or any resident of Jefferson for requiring the deposits of plaincounty of known financial responsi
tiff and others, is not enforceable if bility and integrity, whether a cus- discriminatory, it would seem worse tomer of the company or not."
than a waste of words to further disUnder this rule as enforced, ac- cuss the cross appeal. cording to the proof, less than 10 It is not only the universal rule of per cent of the company's patrons appellate practice that a judgment were required either to make de- will not be reversed because of error posits or to give a written guaranty unless the appellant's substantial
(196 Ky. 268, 244 8. W. 690.) rights have been prejudiced thereby, tiffs in a single action for the recovbut it is expressly so provided by our ery of such amounts alone. Union Code.
Light, Heat & P. Co. v. Mulligan, 177 The judgment from which the ap- Ky. 670, 197 S. W. 1081; Batman v. pellant is appealing affords him Louisville Gas & E. Co. 187 Ky. 659, every relief to which he was sever- 220 S. W. 318.
ally entitled, and Since the court not only granted Appeal-absence of preju- every relief for to the plaintiff all the relief to which
which he asked in behalf of others
he was individually entitled, but alsimilarly situ- which he had a com- so granted to him all of the relief ated.
mon or joint right to which he was entitled in common with the others for whom he sought with those for whom he sought to to sue. We are therefore unable to sue, we think it is clear that his insee how he was prejudiced or by terest in the suit is at an end; and what right he can complain of the that the judgment ought not to be judgment, even if it be conceded reversed at his instance, whatever that the court, having jurisdiction be the merit of his contention on beto grant the injunctive relief due half of others with reference to a the plaintiff and those for whom he question of practice in which he has sought to sue, erred in not granting no further interest of any kind, since to all such parties in the one action the rights of the unnamed parties all the relief to which they were en- for whom he sought to sue cannot be titled, including an accounting, un- affected in any way by a judgment der a well-known principle of equity
which refused to permit the plainfor the avoidance of a multiplicity tiff to sue in their behalf in an action of actions.
to which they were not otherwise It is clear that the rights of plain- parties. tiff and those for whom he sought Wherefore the judgment is afto sue to recover the amounts de- firmed on both the original and the posited by them with the company
cross appeals. were several, and not joint, and that Petition for rehearing denied Nothey could not have joined as plain- vember 17, 1922.
Discrimination between its patrons by public service corporation in regard
to furnishing deposit or guaranty. For a discussion of a discrimina- an action to recover a statutory penaltion by a public utility company in re- ty for the failure of the defendant to spect of extension of credit, see the supply the plaintiff with gas as renote in 12 A.L.R., at page 964, wherein quested, the court said: “The finding are treated those cases dealing with that exacting from plaintiff a cash dethe requirement by a public service posit or bond as a condition of supplycorporation that payment for its serv- ing him with gas was an arbitrary disices be made in advance by some of its crimination against plaintiff is fully patrons.
justified by the evidence. Indeed, A requirement by a public service such fact was admitted both by decorporation that its patrons furnish a fendant's answer and the testimony of deposit or a guaranty as security for its secretary, who stated that defendpayment of future service has been ant had no rules or regulations purheld to be improper discrimination, suant to which the exaction of a dewhere it is enforced against some, but posit or bond was made a condition of not against all, of its patrons.
supplying gas to its consumers.” Thus, in Fair v. Home Gas & E. Co. A similar conclusion was reached in (1911) 15 Cal. App. 705, 115 Pac. 754, the case of Owensboro Gaslight Co. v. Hildebrand (1897) 19 Ky. L. Rep. 983, evidence discloses that it had been the 42 S. W. 351, an action to compel the custom to exact a money deposit or the defendants to furnish light, which signature of a person known to be rethey had refused to do following the sponsible whenever the applicant was plaintiff's failure to make a deposit unknown, or known to be irresponsias security for future service. The ble. The delivery of gas necessarily court, after pointing out that the de- is its consumption. The amount can fendants were bound to serve the pub- only be ascertained as consumed. lic without discrimination, said: "It is The company is bound to furnish on conceded by appellee that appellant application, and it is but just that it may prescribe reasonable rules and be not compelled to supply unknown regulations and impose reasonable or irresponsible persons therewith, conditions upon the consumer and re- without assurance in some form that quire proper security for the payment it will receive compensation. The of their bills, and may even require adoption of a formal rule exacting deposits in advance, but his conten- security seems unnecessary if there is tion here is that the companies have a well-established custom, as appears adopted no such rule or regulation in this case, to exact security as statas they have attempted to enforce ed. The evidence discloses that this against him, and such appears to us had always been customary with the to be a fact. No rule or regulation of company. In such a case, the custom a general character is relied on or ex- has the force of a rule or regulation. hibited by the companies, and to allow Of course, it could not impose differthem to select this or that consumer ent terms according to whim or caagainst whom to enforce special rules price, but must treat all consumers in would put the consumer at the capri- like situations alike. As said in Cedar cious humor of the agents and employ- Rapids Gaslight Co. Case ((1909) 144 ees of the companies."
Iowa, 426, 48 L.R.A.(N.S.) 1025, 138 And in the reported case (BARRIGER Am. St. Rep. 299, 120 N. W. 966), the v. LOUISVILLE GAS & E. Co. ante, 1408), company may not base a rule on the wherein it is conceded by the defend- theory that the people as a whole are ant that a rule requiring deposits dishonest, but it has the right to adopt from consumers is not enforceable if a rule which, wiile giving the honest discriminatory, the court holds that citizen what he pays for, will prevent discrimination does exist where about the dishonest from getting that which 10 per cent of the defendant's patrons he will never pay for. Appellee argues are required to make a cash deposit, that the custom in any event is unreawhile no security is demanded of the sonable and unjust, in that no definite remaining 90 per cent.
test is fixed for determining from In Phelan v. Boone Gas Co. (1910) whom security shall be exacted, all 147 Iowa, 626, 31 L.R.A.(N.S.) 319, 125 being left to the company's agents. It N. W. 208, an action in mandamus to is unnecessary to pass on this point, require the defendant to replace a gas for conceding the validity of the regumeter in the plaintiff's house and sup- lation, we agree with the trial court ply him with gas, it appeared that ow- that it was not resorted to in good ing to differences over the company's faith. Prior to the suit in the justice account it had removed a meter from court, no question had been raised conthe plaintiff's house and cut off his cerning the plaintiff's responsibility. supply of gas, an action on the ac- He had paid his bills promptly. Immecount resulting in a judgment for diately thereafter the company's manthe present plaintiff, who thereupon ager instructed the employees not to sought reinstatement as a patron of reinstate Phelan's meter without sethe defendant company, which, how- curity, and on the trial he admitted ever, refused service except on deposit having no other reason for declaring of $10 as security for payment of gas, him slow in his accounts, or irresponor the procuring of someone to guar- sible, than the lawsuit in which the antee payment. The court said: “The court adjudicated that the company's account had been paid. In retaliation, from each prospective consumer of rather than because of questioning gas, the deposit to be returned with plaintiff's responsibility, the company interest on the surrender of the meter, demanded the security. In the ab- but declared that discrimination in sence of any evidence to the contrary, the application thereof would render he is presumed to have been respon- the rule invalid. It was held, howsible for obligations undertaken, and ever, that no discrimination had been the district court rightly directed the proven where the evidence showed issuance of the writ of mandamus as those not required to make the deposprayed."
it had been connected with the pipe In Collins v. Miami County Gas Co. lines before the defendant had pur(1919) 104 Kan. 735, 180 Pac. 769, the chased the plant, had made some other court upheld as reasonable a rule of a concession to the company, or had gas company requiring a deposit of $5 evaded the requirement. R. S.
CHARLES M. ADAMS, Piff. in Err.,
Virginia Supreme Court of Appeals - March 20, 1924.
(- Va. — 122 S. E. 126.) Evidence - photographs of signatures — admissibility.
1. Photographs of names and signatures placed in juxtaposition on the same plate, showing questioned signatures and genuine ones, are admissible in evidence to enable expert witnesses to point out the similarities and dissimilarities in the writings.
[See note on this question beginning on page 1431.] - knowledge of handwriting.
- opinion as to genuine writing. 2. In a will contest a nonexpert wit- 5. Where one of two persons whose ness who has given the opinion that writings are much alike is claimed to the will was in the handwriting of have forged an instrument of the othdecedent may be asked on cross-ex- er, and the genuine writings of both amination if a page of accounts in a are before the court, a nonexpert who book kept in the business of the de- has given his opinion that the alleged ceased was in his handwriting. forged instrument is genuine may be
[See 11 R. C. L. 647, 648; 2 R. C. L. asked, on cross-examination, to look Supp. 1295.]
at one of the genuine writings and comparison with other writing.
.say whether it is that of the one or
the other person. 3. Comparison of handwriting may be made with any writing proved or
[See 11 R. C. L. 648; 2 R. C. L. Supp.
1295.] admitted to be genuine, whether already in the cause or not.
- use of enlarged photograph on [See 10 R. C. L. 995.]
6. A nonexpert witness who has - cross-examination of nonexpert wit- testified to the genuineness of the signess.
natures to a will cannot, on cross-ex4. Upon cross-examination
amination, be shown a photograph nonexpert witness to handwriting, showing several enlargements of a questions involving the extent of his written word which forms the surknowledge or observation, or his fair- name in the signature, and asked ness, or his bias or prejudice, are per- whose signatures they are, where the missible.
photograph has not been introduced [See 11 R. C. L. 647; 2 R. C. L. Supp. in evidence or any explanation of it 1295.]
Appeal — when inadmissible evidence investigation, the reasons for his opinnot harmless.
ions, the peculiarities of the ques7. Testimony cannot be regarded as tioned writing, and the difference in harmless which tends to impeach a this respect between it and the genuwitness as to the main subject of his ine writing, the difference between testimony.
his opinion and that of other experts Witness nonexpert opinion as to who have testified in the case, and signature.
other subjects which will throw light 8. Where the only knowledge which upon the weight to be given to his one on whose testimony a will has
testimony. been admitted to probate, but who was
[See 11 R. C. L. 646.] not a handwriting expert, had of the Appeal — ruling on cross-examination genuineness of the signature, was de- of handwriting expert. rived from the signatures to checks 15. The scope and limitation of the which he had received, he cannot be cross-examination of a handwriting asked whether or not, in his opinion, expert must be left largely to the disthe signatures to the checks were the cretion of the trial court, whose ruling same as that to the will, after the sig
is rarely disturbed. natures to the checks have been [See 11 R. C. L. 347; 2 R. C. L. Supp. proved to have been made by a third 1295.] person.
Witness impeachment founda- identification of writing.
tion. 9. One familiar with the writing of
16. To impeach a witness by a prior an alleged testator and of another who
inconsistent statement, a foundation is alleged to have forged his will may
should be laid by first calling the atidentify samples of the genuine writ
tention of the witness to the alleged ing of each for use as exhibits in the
statement and inquiring whether or case.
not he made it. - banker as handwriting expert.
[See 28 R. C. L. 636; 3 R. C. L. Supp. 10. A banker who for twenty years
1588; 4 R. C. L. Supp. 1833.] had been required to examine signatures for the purpose of detecting and - impeachment by testimony on forproving forgeries may be permitted mer trial, to testify as a handwriting expert. 17. Testimony at a former trial may Evidence waiver of error.
be used to impeach a witness, if his 11. Error in permitting a witness
attention is called to the former testito qualify as a handwriting expert is
mony and he is given an opportunity waived by introducing similar evi
to explain any inconsistency with that dence in opposition.
given at the present trial.
[See 28 R. C. L. 640.] Witness cross-examination of handwriting expert.
- testimony from photographs. 12. Bankers who qualify as hand
18. A handwriting expert may be writing experts to give opinions as
permitted to make comparisons of to the genuineness of the signatures handwritings from photographs which to a will may be shown signatures
he has made and testifies to be corand photographs of various writings. rect, even though some of them are of the surname in the signature to the
enlargements. will, and required to state if they are
[See 11 R. C. L. 624; 2 R. C. L. Supp. genuine signatures of the testator.
1288.] [See 11 R. C. L. 646; 2 R. C. L. Supp. Trial question for jury what 1295.]
weight to be given expert testimony. scope of cross-examination
19. The question of the relative 13. A very wide scope should be weight to be given to the testimony of given to the cross-examination of ex- practical experts and of scientific experts on handwriting.
perts in handwriting is for the jury. [See 11 R. C. L. 646; 2 R. C. L. Supp. Evidence – photographs of grouped 1294.]
writings. - what cross-examination may in- 20. Photographs of writings grouped clude.
or placed in juxtaposition for the pur14. An expert on handwriting may pose of comparing genuine with disbe cross-examined as to his experi- puted ones, or for emphasizing certain ence and competency, his methods of letters or other peculiarities found in