Ford v. Rio Grande Valley Gas Co.

• Decision Date: 06 October 1943
• Docket Number: No. 8106.,8106.
• Citation: 174 S.W.2d 479
• Parties: FORD v. RIO GRANDE VALLEY GAS CO.
• Court: Texas Supreme Court

Page 479

174 S.W.2d 479

FORD v.RIO GRANDE VALLEY GAS CO.

No. 8106.

Supreme Court of Texas.

October 6, 1943.

Rehearing Denied November 3, 1943.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by P. S. Ford against Rio Grande Valley Gas Company to recover damage under statute making it unlawful for gas corporation to discriminate against any person in charge for gas under similar circumstances. Judgment for plaintiff was reversed by Court of Civil Appeals, 169 S.W.2d 263 and plaintiff brings error.

Affirmed.

E. A. McDaniel, of McAllen, for plaintiff in error.

Logan Ford, of Dallas, John Maxwell, of Waco, Charles L. Black, of Austin, and Walter Walne, of Houston, amici curiae.

R. A. Hightower and West & Hightower, all of Brownsville, and B. D. Kimbrough, of McAllen, for defendant in error.

BREWSTER, Commissioner.

P. S. Ford, petitioner, sued Rio Grande Valley Gas Company, respondent, under Art. 1438, R.S. 1925, to recover an alleged overcharge for natural gas purchased by him to operate a laundry and cleaning plant in McAllen.A trial court judgment for Ford was reversed and rendered for respondent by the Court of Civil Appeals.169 S.W.2d 263.

Ford alleged that he was given a commercial rate graduated from 30 cents to 20 cents per thousand cubic feet, according to his maximum monthly consumption, but that six other named consumers in McAllen were given an industrial rate of 17 cents per thousand cubic feet per month; that these six concerns, "according to their locations, the means that had to be employed to furnish the gas, the nature of the business that they were engaged in, and the amount of gas consumed came under the same class" that he did; that respondent violated its duty to serve its customers "without discrimination, that is to say those within a reasonable class, according to amounts of gas consumed and the facilities required to furnish same"; and that, therefore, he was overcharged $1,728.44 during 1938 and 1939.By trial amendment, he alleged that he was an industrial consumer the same as the others were, in that they used steam boilers to process and can fruits and vegetables while he used a steam boiler to process and clean clothes.

Thus his case is grounded on the proposition that, since the utility had declared processors and canners of fruits and vegetables an industrial class and had promulgated a rate for them, he was entitled to it because his business belonged to that class; and, since he was charged a higher rate, he should recover the difference as an overcharge.It is apparent that he is standing on Texas P. & L. Co. v. Hilltop Baking Co., Tex.Civ.App., 78 S.W.2d 718, error dismissed, and Texas P. & L. Co. v. Doering Hotel Co., Tex.Civ.App., 147 S.W.2d 897, affirmed by this court in 139 Tex. 351, 162 S.W.2d 938, which allowed the customer an overcharge recovery under the principle that a utility cannot extend the benefit of an established rate to some customers of the class for whom the rate is made and deny it to others who belong to that class because served under similar and like circumstances.

There is no rule of thumb by which to determine whether the conditions of utility service are similar or dissimilar.It is a question of fact to be determined from the testimony in each case, and the burden of proof is on the complaining party.Elk Hotel Co. v. United Fuel Gas Co., 75 W.Va. 200, 83 S.E. 922, L.R.A. 1917E, 970.When the material billing factors are substantially the same the service is regarded as rendered "under similar and like circumstances," within the meaning of Art. 1438, supra.Texas P. & L. Co. v. Doering Hotel Co., Tex.Civ.App., 147 S.W.2d 897, supra.Any matter which presents a substantial difference as a ground for distinction between customers, such as quantity used, time of use, or manner of service, is a material billing factor.American Aniline Products, Inc., v. City of Lock Haven, 288 Pa. 420, 135 A. 726, 50 A.L.R. 121.Quantity used is an important one.Bilton Machine Tool Co. v. United Illuminating Co., 110 Conn. 417, 148 A. 337, 67 A.L.R. 814;Kolb Cleaning & Tailoring Co. v. Mississippi Power & Light Co., 166 Miss. 136, 145 So. 910.So is the cost of furnishing the service.Graver v. Edison Elec. Illuminating Co., 126 App.Div. 371, 110 N. Y.S. 603.In fact, it has been said that quantity used and the cost of service are the principal ones.43 Am.Jur., p. 690, sec. 179.And seeAnnotationat page 821, 67A.L.R. Ford's pleadings recognize that he had to show the substantial sameness of those factors in the service to his laundry and in that to the canners, before he would be entitled to recover.

The relevant testimony is practically undisputed.The question is whether it shows that the material billing factors are substantially the same.The industrial rate, claimed by Ford, was established because the city officials and business men of McAllen were insisting on a low rate to attract the canning industry, which was going to other states on account of high rates prevailing in the citrus region of Texas.The city went so far as to grant a franchise to another utility when it agreed to establish a rate...