#### SWEETHEART LAKE, INC., ARANSAS DEVELOPMENT COMPANY, and EDWARD D. DUNLOP v. CAROLINA POWER AND LIGHT COMPANY.

(Filed 24 February, 1937.)

1. Electricity § 3 — Power company may not require customer to repair transmission line as condition precedent to restoration of service.

Tbe facts disclosed by the admissions in the pleadings and at the trial were that defendant power company furnished plaintiff electricity over a four-mile transmission line extending from defendant’s main transmission lines to the property of plaintiff, defendant making necessary repairs to the four-mile transmission line at its own expense; that after the suspension of service for good cause, defendant refused to restore service unless plaintiff repaired the four-mile transmission line at plaintiff’s expense. *Held:*Upon the facts appearing of record, defendant’s refusal to restore service upon the payment of all charges for service, unless plaintiff also repaired the four-mile transmission line, was wrongful.

2. Same — Customer is entitled to restoration of electric service after suspension without first obtaining an order from Utilities Commission.

Where a power company furnishes electricity to a customer for years, and then the service is discontinued for nonpayment of charges, the customer, upon payment of all charges for service, is entitled to have the service restored without first obtaining an order to that effect from the Utilities Commission, the power company not having obtained an order from the Commission to discontinue the service under the provisions of N. C. Code, 1112 (32).

Appeal by plaintiffs from *Pless, J.,*at May Term, 1936, of Moose.

Reversed.

This is an action to recover damages which were sustained by the plaintiffs and which resulted from the wrongful refusal of the defendant, a public service corporation, organized under the laws of this State, and engaged in the business of generating, distributing, and selling electricity for commercial and domestic use, as a public utility, to furnish to the plaintiffs on their property in Moore County, North Carolina, electricity for commercial and domestic use, in accordance with the request of the plaintiffs.

The action was begun in the Superior Court of Moore County on 30 October, 1935, and was heard at May Term, 1936, of said court.

After a jury had been impaneled and the pleadings read, the defendant demurred “to the jurisdiction of the court for that as a prerequisite to its cause of action, the plaintiffs were required to establish their right to service from the defendant before the State Utilities Commission, and that not having done so, this Court is without original jurisdiction in the matter.”

*270The facts, as shown by admissions in tbe pleadings and .at tbe trial, are as follows:

1. Tbe plaintiffs own certain properties, real and personal, located in Moore County, North Carolina, about four miles from tbe main transmission lines of tbe defendant. Tbe said properties were designed for use and were used by tbe plaintiffs, prior to 1 May, 1931, as a resort for tbe public. Sucb use required electricity, for both power and lighting.

2. Erom about 10 July, 1924, to about 1 May, 1931, tbe defendant furnished to tbe plaintiffs on their said property electricity for both power and lights, using for this purpose a line which extended from its main transmission lines to said property, a distance of about four miles. Meters were installed by tbe defendant at tbe end of said line on tbe properties of *the*plaintiffs and from time *to*time *the*defendant made necessary repairs to said line at its own expense.

4. On or about 1 May, 1931, tbe defendant suspended its service to tbe plaintiffs because of tbe failure of tbe plaintiffs to pay service charges due to tbe defendant at that date. While sucb service was suspended, tbe defendant notified tbe plaintiffs that it would not renew sucb service to tbe plaintiffs unless and until tbe plaintiffs, at their own expense, made certain repairs to tbe line extending from its main transmission lines to tbe properties of tbe plaintiffs. Thereafter, on or about 1 November, 1931, tbe plaintiffs paid to tbe defendant all sums due tbe defendant for service rendered to tbe plaintiffs by tbe defendant prior to 1 May, 1931, and requested tbe defendant to renew said service over said line. Tbe defendant refused to renew sucb service unless and until tbe plaintiffs, at their own expense, made necessary repairs to tbe line extending from its main transmission lines to tbe property of tbe plaintiffs.

5. Tbe plaintiffs, by petition, instituted a proceeding before tbe North Carolina Corporation Commission for an order requiring tbe defendant to renew its service to tbe plaintiffs. Tbe defendant filed an answer to tbe said petition. Tbe proceeding pended before tbe commission until some time in December, 1932, when it was dismissed by tbe Commission because of tbe failure of tbe petitioners or tbe respondent to prosecute tbe same. No further proceeding has been instituted before tbe Corporation Commission or before its successor, tbe Utilities Commission, to determine tbe rights of tbe plaintiffs and tbe defendant with respect to tbe matters in controversy between them.

On these facts, tbe court was of opinion that tbe Superior Court of Moore County is without jurisdiction to bear and determine tbe action, and accordingly sustained tbe demurrer of tbe defendant.

*From*judgment that plaintiffs *recover*nothing of *the*defendant by this action, and that defendant recover of tbe plaintiffs its costs, tbe plaintiffs appealed to tbe Supreme Court, assigning error in tbe judgment.

*271
      *H. F. Sea-well, Jr., for plaintiffs.*

*TJ. L. Spence, W. D. Sabiston, and A. T. Arledge for defendant.*

*Qonnor,*J.

If on the facts admitted in the pleadings and at the trial of this action, the plaintiffs had a legal right to the service which they requested of the defendant, the Superior Court of Moore County had original jurisdiction of the cause of action alleged in the complaint, and there is error in the judgment, in effect, dismissing the action; on the other hand, if the plaintiffs had no legal right to such service, in the absence of an order of the Utilities Commission requiring the defendant to furnish such service to the plaintiffs, upon such terms as the said Commission shall have determined, there is no error in the judgment, and the same should be affirmed.

We are of opinion that on the facts appearing in the record the plaintiffs had a legal right to the service which they requested of the defendant, and that the refusal of the defendant to furnish such service at the request of the plaintiffs was wrongful, because such refusal was a breach of a duty which the defendant owed to the plaintiffs, whether contractual or statutory. Eor that reason, the judgment in this action must be reversed.

When a public service corporation, engaged in business as a public utility, has furnished service to a customer through a period of years, the customer is entitled to a continuance of such service, or in the event of a temporary suspension of such service, for good cause, to its restoration, without having first obtained an order to that effect from the State Utilities Commission. In such ease, the public service corporation has no legal right to refuse to continue or to restore such service without having first obtained an order to that effect from the State Utilities Commission. It is provided by statute that “upon finding that public convenience and necessity are no longer served, or that there is no reasonable probability of a utility realizing sufficient revenue from the service to meet its expenses, the Commission shall have power, after petition, notice, and hearing, to authorize by order any utility to abandon or reduce its service or facilities.” Sec. 32, ch. 307, Public Laws of N. C., 1933; N. 0. Code of 1935, sec. 1112 (32).

The judgment in this action is

Reversed.