I do not agree to a reversal of this cause, and believe it should be affirmed; that is to say, the trial court did not err in refusing above defensive issues, because the doctrine of mitigation of damages is nowise applicable to the facts and circumstances of plaintiff's cause of action. If, prior to said breach, plaintiff's dealings with defendant were not based upon an express novated contract, then certainly such agreement to furnish water was implied, terminable only on failure to pay current bills. (Of course, defendant could at any time have required plaintiff to conform to the existing regulations relative to a written application for water.) It appears indisputably from the record, and the jury so found, that defendant discontinued its service upon plaintiff's refusal to pay the $4.31 bill owing by another person and wholly incurred at another address; a bill long delinquent when added to plaintiff's current bill, and one that defendant could not even reasonably contend was hers. Had the argument been confined to plaintiff's own water bill — which it was not — the decisions are general that neither a water company nor a municipality can arbitrarily shut off a consumer's supply, pending dispute in good faith over correctness of the charge. "Thus, it has been held that where a water company discontinues its service for nonpayment of a disputed amount or liability, it does so at its peril, and, if in the wrong, is liable to compensatory damages in any event, and, where the circumstances justify it, to punitive damages also." Annotation to Sims v. Alabama Water Co., 205 Ala. 378, 87 So. 688, 28 A.L.R. 461, at page 475.
A city, when operating a water works in its proprietary capacity, owes a duty to patrons not basically different from that of a like corporation, privately owned. In Southwestern Gas Electric Co. v. Stanley, Tex. Civ. App. 45 S.W.2d 671, 674, affirmed by Supreme Court,123 Tex. 157, 70 S.W.2d 413, plaintiff recovered damages, both actual and exemplary, for a wrongful discontinuance of lights to his residence, following a disputed account for light service to his garage. The trial court refused defendant's requested instruction as to whether plaintiff should have minimized his damage by payment. In an affirmance, the Texarkana Court said: "In no wise had the appellee failed or defaulted in the performance of his agreement to timely pay the monthly charges for electricity for his residence. And in no wise had the appellant company's right to have timely payment of the electric bill for the residence been violated. In such circumstances the appellant company could not be regarded as in a position to claim that the appellee by not promptly paying the garage bill for electricity had violated and become delinquent in performance of the contract as respects the residence, consequently the nonpayment of the garage bill would not legally justify cutting out the electricity for the residence. Texas Central Power Co. v. Perez (Tex. Civ. App.) 291 S.W. 622. Manifestly one party cannot compel the other affirmatively to do something which the contract does not require of him. It follows that the appellee, having a right to insist on full performance of the contract according to its terms as respects his residence, owed the appellant company no duty and the appellant companycould not require him to pay the garage bill as a means to prevent thedamages occasioned without his fault in cutting off the electricity fromhis residence. To so require the appellee to do would, in effect, be forcing him to abandon his legal right and waive damages that may arise from the breach of contract or tort and be converting his right into a coercive way of merely paying *Page 133 debts entirely apart from the particular contract." (Italics supplied.) Citing Galveston, H. S. A. Ry. Co. v. Zantzinger, 92 Tex. 365,48 S.W. 563, 44 L.R.A. 553, 71 Am. St. Rep. 859.
It is my judgment that the same general principle is controlling of the present facts; and, so believing, I conclude no reversible error appears from a refusal of the issues under discussion.