Haverhill Gas Co. v. Findlen

• Citation: 357 Mass. 417,258 N.E.2d 294
• Parties: HAVERHILL GAS COMPANY v. Fred J. FINDLEN et al. 1
• Decision Date: 04 May 1970
• Court: United States State Supreme Judicial Court of Massachusetts

Page 294

258 N.E.2d 294

357 Mass. 417

HAVERHILL GAS COMPANY v. Fred J. FINDLEN et al. ¹

Supreme Judicial Court of Massachusetts, Essex.

Argued March 5, 1970.

Decided May 4, 1970.

Robert J. Sherer, Boston, for defendants.

Peter Laraba, Haverhill, for plaintiff.

Before WILKINS, C.J., and SPALDING, KIRK, REARDON & QUIRICO, JJ.

WILKINS, Chief Justice.

This is an action of contract on an account annexed for natural gas sold and delivered in the seven months from December, 1963, to June, 1964, inclusive. The jury found for the plaintiff in the amount of $3,829.25. The defendants excepted to rulings on evidence, to the charge, and to the denial of requests for instructions.

In 1963 and 1964 at the request of the defendants, who were general contractors constructing a housing project for the Haverhill Housing Authority, the plaintiff furnished natural gas to heat the project during the construction. Due to a mistake of the plaintiff the defendants were billed for only one tenth of the gas used. When after the completion of the project the error was discovered, the plaintiff submitted a corrected bill, which the defendants refused to pay. The verdict is for the difference between the price which should have been charged and the price which was erroneously billed and paid.

The project was larger than the usual domestic project. It comprised nine buildings housing eighty apartments, and a community building. The size of the project and the amount of gas to be supplied necessitated a metering system differing from that of the ordinary domestic consumer. This meter measures in thousands of cubic feet, and the company's billing is set up on a hundred cubic foot basis, so there would be a constant of ten for the meter, that is, the reading from the indicator on the base pressure index 'would be multiplied by ten converted to units of one hundred.' On the front of the base pressure index is a metal plate on which was engraved: 'Drive shaft 1 rev. equals 10 cu. ft. Rear index multiply by 100. Front index multiply by 1000.' This meter and base pressure index were inspected and approved by the Department of Public Utilities on August 8, 1963. At the time of the installation of the base pressure index the multiplier or constant was not noted on the meter order in the company's files. Consequently, the defendants were billed for only one tenth of the gas used. The defendants paid the original monthly bills totaling $447.65.

In this Commonwealth gas and electric rates are fixed by the Department of Public Utilities. G.L. c. 164, § 94. ¹ 'It is not wrongful for a gas company to charge its customers the rates established by an order of the department. General Laws (Ter.Ed.) c. 164, § 94, as amended by St.1939, c. 178, § 1, provides that until the effective date of some change 'no different rate, price or charge shall be charged, received or collected by the company filing such a schedule from those specified in the schedule then in effect', * * * It is settled that rates charged by a public service company in accordance with its filed schedules allowed by the department cannot be questioned in court proceedings between the customers and the company.' Sullivan v. Boston Consol. Gas Co., 327 Mass. 163, 166--167, 97 N.E.2d 535, 537--538.

This is another example of the inflexibility of rates fixed by public authority. In Papetti v. Alicandro, 317 Mass. 382, 58 N.E.2d 155, a carrier of goods by motor vehicle was allowed to bring an action against a shipper to recover a minimum rate which was legally established by the Department of Public Utilities and which the carrier had unlawfully rebated to the shipper. At p. 386, 58 N.E.2d at p. 157 it was said: 'The present action, in effect, is brought for the enforcement of the schedule of rates established under the act.' There was noted at pp. 391--392, 58 N.E.2d at pp. 159--160, a resemblance to the Interstate Commerce Act and numerous decisions of the Supreme Court of the United States and of this court. "Neither the intentional nor accidental misstatement of the applicable published rate will bind the carrier or shipper. The lawful rate is that which the carrier must exact and that which the shipper must pay.' Kansas City Southern Co. v. Carl, 227 U.S. 639, 653, 33 S.Ct. 391, 57 L.Ed. 683. The 'effect of filing schedules of rates with the Interstate Commerce Commission was to make the published rates binding upon shipper and carrier alike, thus making effectual the purpose of the act to have but one rate, open to all alike and from which there could be no departure.' Boston & Maine Railroad v. Hooker, 233 U.S. 97, 112, 34 S.Ct. 526, 58 L.Ed. 868.'

'One to whom a certificate (as a common carrier) has been granted (by the Department of Public Utilities) is bound to collect and the shipper to pay the established rates for the service rendered, and neither is excused through fraud, accident, mistake, or any other cause from collecting or paying the said rates.' Mt. Tom Motor Line, Inc. v. McKesson & Robbins, Inc., 325 Mass. 45, 48--49, 89 N.E.2d 3, 6. 'It is clear that if a common carrier, dealing as such, charges less than its filed tariff, or if a contract carrier, dealing as such, charges less than its filed schedule of rates, each may recover the difference.' Superline Transp. Co., Inc. v. My Bread Baking Co., 350 Mass. 364, 368, 214 N.E.2d 885, 888.

In New York, N.H. & H.R.R. v. York & Whitney Co., 215 Mass. 36, 102 N.E. 366, there was an action to recover a balance of freight charges which through the carrier's mistake had not been claimed or collected at the time of the delivery of the goods which were shipped from Delaware to Boston. At pp. 40--41, 102 N.E. at p. 368, it was said by Chief Justice Rugg: 'The reason why there must be inflexibility in the enforcement of the published rate against all and every suggestion for relaxation rests upon the practical impossibility otherwise of maintaining equality between all shippers without preferential privileges of any sort. The rate when published becomes established by law. It can be varied only by law, and not by act of the parties. The regulation by Congress of interstate commerce rates takes that subject out of the realm of ordinary contract in some respects, and places it upon the rigidity of a quasi statutory enactment. The public policy thus declared supersedes the ordinary doctrine of estoppel, so far as that would interfere with the accomplishment of the dominant purpose of the act. It does not permit that inequality of rates to arise indirectly through the application of estoppel, which it was the aim of the act to suppress directly. To this effect are decisions of other courts. * * * The same reasoning makes ineffectual the defendant's argument for recoupment and as to the effect of payment of and receipt for the wrong rate.'

The case at bar greatly resembles Wisconsin Power & Light Co. v. Berlin Tanning & Mfg. Co., 275 Wis. 554, 83 N.W.2d 147, which also was an action for gas furnished. The plaintiff installed on the defendant's premises a meter which had a front accumulative indicator or index. The reading on the index when multiplied by 1,000 equaled the number of standard cubic feet of gas used. In order to compute the charge, the reading on the meter was to be multiplied by 1,000 and then divided by 100 in order to compute the number of hundreds of cubic feet, and the same result was reached when the meter reading was multiplied by ten. During the period in suit the meter was read by the plaintiff's employees. The readings were not multiplied by ten, and in rendering monthly bills the plaintiff charged the defendant for one tenth of the number of hundreds of cubic feet actually furnished. The plaintiff, as soon as the mistake was discovered, brought it to the attention of the defendant, which refused to pay. The correct billing was $26,361 and the defendant had pad $3,440.79, leaving a balance owing of $22,920.21. The court decided for the plaintiff, citing the York & Whitney case, supra, Texas & Pac. Ry. v. Mugg, 202 U.S. 242, 26 S.Ct. 628, 50 L.Ed. 1011 and Illinois Cent. R.R. v. Henderson Elev. Co., 226 U.S. 441, 33 S.Ct. 176, 57 L.Ed. 290.

The defendants' case was presented in the Superior Court as if it were governed by...