mit him to sue for others similarly situated as himself

On behalf of the city, in accordance with its prayer, the defendant was enjoined from enforcing the rule requiring deposits as a condition to service against any citizen, unless enforced against all. The plaintiff, Barriger, appeals from only so much of the judgment as refused him the right to sue for all and for an accounting on their behalf, and the company cross appeals from so much of the judgment as holds the rule discriminatory and grants plaintiff any relief. The city has not appealed.

Since it is conceded that neither the plaintiff nor any of those for whom he sought to sue was entitled to any relief unless the rule under which the deposits were required by the company was discriminatory, we will consider it first. As set forth in defendant's answer, it is as follows:

"All persons applying for gas or electricity will be required either to deposit an amount equal to the estimated cost of forty-four (44) days' service, or to give the written guaranty of someone known to the company that their bills will be paid. Where deposits are made a receipt for the amount will be given, and interest will be paid thereon at the rate of 6 per cent per annum.

"In the case of consumers who have previously used the company's service and have paid their bills regularly, the company has arranged with a responsible party to guarantee all such bills.

"The company will accept as guarantor any customer who has used its service in an amount as great as the consumer proposes to use it, and who has habitually paid his bills; or any resident of Jefferson county of known financial responsibility and integrity, whether a customer of the company or not."

Under this rule as enforced, according to the proof, less than 10 per cent of the company's patrons were required either to make deposits or to give a written guaranty

that their bills would be paid, and more than 90 per cent of its patrons were never even informed of the existence of such a rule, but their accounts were guaranteed for them, without their knowledge or consent, by an employee of the defendant, Mr. Edward I. Redding, for which service the company arranged, and paid him a commission upon the amount of the bills guaranteed by him.

The net result of this rule was, therefore, that about 10 per cent of the citizens of Louisville who were patrons of the company which furnished them gas and electricity under a franchise from the city were required by a rule of the company to furnish a cash deposit or written guaranty as security for their accounts, while the remaining 90 per cent of its patrons, by the same rule, were not required to furnish security of any kind for their accounts, and all were charged the same rates for services rendered. Stated otherwise, for the service rendered 10 per cent of its patrons the company received full contract rates, plus an enforced loan, while from the rest of its patrons it received only the contract rates, less the commission paid to Redding for guaranteeing their payment. If such an arrangement does not give to the 90 per cent preferential treatment, and is not therefore discrimi

quiring deposit

natory against the Gas-rule reless favored 10 per for service-discent of its patrons, validity. we do not know how

crimination

it could be accomplished.

Since counsel for the company concede that under its franchise contract with the city it must treat all of its patrons alike, and that the rule, which is its only justification for requiring the deposits of plaintiff and others, is not enforceable if discriminatory, it would seem worse than a waste of words to further discuss the cross appeal.

It is not only the universal rule of appellate practice that a judgment will not be reversed because of error unless the appellant's substantial

Appeal-absence of prejudice-suit on behalf of others similarly situated.

The judgment from which the appellant is appealing affords him every relief to which he was severally entitled, and every relief for which he asked in which he had a common or joint right with the others for whom he sought to sue. We are therefore unable to see how he was prejudiced or by what right he can complain of the judgment, even if it be conceded that the court, having jurisdiction to grant the injunctive relief due the plaintiff and those for whom he sought to sue, erred in not granting to all such parties in the one action all the relief to which they were entitled, including an accounting, under a well-known principle of equity for the avoidance of a multiplicity of actions.

It is clear that the rights of plaintiff and those for whom he sought to sue to recover the amounts deposited by them with the company were several, and not joint, and that they could not have joined as plain

tiffs in a single action for the recovery of such amounts alone. Union Light, Heat & P. Co. v. Mulligan, 177 Ky. 670, 197 S. W. 1081; Batman v. Louisville Gas & E. Co. 187 Ky. 659, 220 S. W. 318.

Since the court not only granted to the plaintiff all the relief to which he was individually entitled, but also granted to him all of the relief to which he was entitled in common with those for whom he sought to sue, we think it is clear that his interest in the suit is at an end; and that the judgment ought not to be reversed at his instance, whatever be the merit of his contention on behalf of others with reference to a question of practice in which he has no further interest of any kind, since the rights of the unnamed parties for whom he sought to sue cannot be affected in any way by a judgment which refused to permit the plaintiff to sue in their behalf in an action to which they were not otherwise parties.

Wherefore the judgment is affirmed on both the original and the cross appeals.

Petition for rehearing denied November 17, 1922.

For a discussion of a discrimination by a public utility company in respect of extension of credit, see the note in 12 A.L.R., at page 964, wherein are treated those cases dealing with the requirement by a public service corporation that payment for its services be made in advance by some of its patrons.

A requirement by a public service corporation that its patrons furnish a deposit or a guaranty as security for payment of future service has been held to be improper discrimination, where it is enforced against some, but not against all, of its patrons.

Thus, in Fair v. Home Gas & E. Co. (1911) 15 Cal. App. 705, 115 Pac. 754,

an action to recover a statutory penalty for the failure of the defendant to supply the plaintiff with gas as requested, the court said: "The finding that exacting from plaintiff a cash deposit or bond as a condition of supplying him with gas was an arbitrary discrimination against plaintiff is fully justified by the evidence. Indeed, such fact was admitted both by defendant's answer and the testimony of its secretary, who stated that defendant had no rules or regulations pursuant to which the exaction of a deposit or bond was made a condition of supplying gas to its consumers."

A similar conclusion was reached in the case of Owensboro Gaslight Co. v.

Hildebrand (1897) 19 Ky. L. Rep. 983, 42 S. W. 351, an action to compel the defendants to furnish light, which they had refused to do following the plaintiff's failure to make a deposit as security for future service. The court, after pointing out that the defendants were bound to serve the public without discrimination, said: “It is conceded by appellee that appellant may prescribe reasonable rules and regulations and impose reasonable conditions upon the consumer and require proper security for the payment of their bills, and may even require deposits in advance, but his contention here is that the companies have adopted no such rule or regulation as they have attempted to enforce against him, and such appears to us to be a fact. No rule or regulation of a general character is relied on or exhibited by the companies, and to allow them to select this or that consumer against whom to enforce special rules would put the consumer at the capricious humor of the agents and employees of the companies."

And in the reported case (BARRIGER v. LOUISVILLE GAS & E. Co. ante, 1408), wherein it is conceded by the defendant that a rule requiring deposits from consumers is not enforceable if discriminatory, the court holds that discrimination does exist where about 10 per cent of the defendant's patrons are required to make a cash deposit, while no security is demanded of the remaining 90 per cent.

In Phelan v. Boone Gas Co. (1910) 147 Iowa, 626, 31 L.R.A. (N.S.) 319, 125 N. W. 208, an action in mandamus to require the defendant to replace a gas meter in the plaintiff's house and supply him with gas, it appeared that owing to differences over the company's account it had removed a meter from the plaintiff's house and cut off his supply of gas, an action on the account resulting in a judgment for the present plaintiff, who thereupon sought reinstatement as a patron of the defendant company, which, however, refused service except on deposit of $10 as security for payment of gas, or the procuring of someone to guarantee payment. The court said: "The

evidence discloses that it had been the custom to exact a money deposit or the signature of a person known to be responsible whenever the applicant was unknown, or known to be irresponsible. The delivery of gas necessarily is its consumption. The amount can only be ascertained as consumed. The company is bound to furnish on application, and it is but just that it be not compelled to supply unknown or irresponsible persons therewith, without assurance in some form that it will receive compensation. The adoption of a formal rule exacting security seems unnecessary if there is a well-established custom, as appears in this case, to exact security as stated. The evidence discloses that this had always been customary with the company. In such a case, the custom has the force of a rule or regulation. Of course, it could not impose different terms according to whim or caprice, but must treat all consumers in like situations alike. As said in Cedar Rapids Gaslight Co. Case [(1909) 144 Iowa, 426, 48 L.R.A. (N.S.) 1025, 138 Am. St. Rep. 299, 120 N. W. 966], the company may not base a rule on the theory that the people as a whole are dishonest, but it has the right to adopt a rule which, while giving the honest citizen what he pays for, will prevent the dishonest from getting that which he will never pay for. Appellee argues that the custom in any event is unreasonable and unjust, in that no definite test is fixed for determining from whom security shall be exacted, all being left to the company's agents. It is unnecessary to pass on this point, for conceding the validity of the regulation, we agree with the trial court that it was not resorted to in good faith. Prior to the suit in the justice court, no question had been raised concerning the plaintiff's responsibility. He had paid his bills promptly. Immediately thereafter the company's manager instructed the employees not to reinstate Phelan's meter without security, and on the trial he admitted having no other reason for declaring him slow in his accounts, or irresponsible, than the lawsuit in which the court adjudicated that the company's

Witness nonexpert signature.

opinion as to

8. Where the only knowledge which one on whose testimony a will has been admitted to probate, but who was not a handwriting expert, had of the genuineness of the signature, was derived from the signatures to checks which he had received, he cannot be asked whether or not, in his opinion, the signatures to the checks were the same as that to the will, after the signatures to the checks have been proved to have been made by a third person.

identification of writing.

9. One familiar with the writing of an alleged testator and of another who is alleged to have forged his will may identify samples of the genuine writing of each for use as exhibits in the

16. To impeach a witness by a prior inconsistent statement, a foundation should be laid by first calling the attention of the witness to the alleged statement and inquiring whether or not he made it.

[See 28 R. C. L. 636; 3 R. C. L. Supp. 1588; 4 R. C. L. Supp. 1833.] -impeachment by testimony on former trial.

17. Testimony at a former trial may be used to impeach a witness, if his attention is called to the former testimony and he is given an opportunity to explain any inconsistency with that given at the present trial.

[See 28 R. C. L. 640.]

- testimony from photographs.

18. A handwriting expert may be permitted to make comparisons of handwritings from photographs which he has made and testifies to be correct, even though some of them are enlargements.

[See 11 R. C. L. 624; 2 R. C. L. Supp. 1288.]