Huntington Brick & Tile Co. v. Public Service Commission

• Decision Date: 17 September 1929
• Docket Number: 6554.
• Citation: 149 S.E. 677,107 W.Va. 569
• Parties: HUNTINGTON BRICK & TILE CO. et al. v. PUBLIC SERVICE COMMISSION et al.
• Court: West Virginia Supreme Court

149 S.E. 677

107 W.Va. 569

HUNTINGTON BRICK & TILE CO. et al. v. PUBLIC SERVICE COMMISSION et al.

No. 6554.

Supreme Court of Appeals of West Virginia.

September 17, 1929

Submitted September 4, 1929.

Rehearing Denied Sept. 30, 1929.

Syllabus by the Court.

The doctrine of res judicata does not prevent a re-examination of the same question between the same parties, when, subsequent to the judgment, facts have arisen which may alter the rights of the litigants.

(Additional Syllabus by Editorial Staff.)

Former decision, refusing to require utility to furnish gas to applicants, on ground that granting demand would require expenditure of unwarranted sum by utility, and would permit ruinous competition with rival utility furnishing the petitioner's present gas supply, held not res judicata as to subsequent application, where proof as to necessary expenditures by utility in order to supply gas was different, and where since the date of the prior decision the rival utilities for all practical purposes had become subject, through stock ownership, to single management and control.

Appeal from Order of Public Service Commission.

Petition by the Huntington Brick & Tile Company and another to require the United Fuel Gas Company to furnish gas to petitioners. The Public Service Commission denied the petition, and petitioners appeal. Reversed, with directions.

Litz J., dissenting.

For dissenting opinion, see 150 S.E. 747.

Paul W Scott and George S. Wallace, both of Huntington, for appellants.

B. J Pettigrew and Harold A. Ritz, both of Charleston, for respondent United Fuel Gas Co.

F. M. Livezey, of Huntington, for respondent Public Service Commission.

HATCHER J.

This is an appeal from an order of the Public Service Commission, entered June 3, 1929, refusing to require United Fuel Gas Company, a public utility, to furnish gas to Huntington Brick & Tile Company and H. R. Wyllie China Company. The application of the former was filed with the commission on August 23, 1927, and that of the latter January 19, 1928. The reasons given by the Commission for its ruling are that the controlling facts of this case are not substantially different from the facts established in the case of Huntington Brick & Tile Co. v. United Fuel Gas Co. (No. 1614), decided by this court March 1, 1927, and reported as United Fuel Gas Co. v. Public Service Commission in 103 W.Va. 306, 138 S.E. 388, 389, 390, and that the decision in that case is res judicata as to this one. The grounds for denying the Brick & Tile Company relief in the former case were that the granting of its demands would (1) require the expenditure of an unwarranted sum of money by United Fuel Gas Company; and (2) open the door to competition which would be ruinous to Huntington Development & Gas Company, the utility supplying the petitioner, and a rival of United Fuel Gas Company. The petitioners herein contend that material facts are proven in this case which throw a light on the situation, entirely different from that which led the court in the former case. It is therefore necessary to compare the facts appearing in the two cases.

The opinion in case No. 1614 refers to Huntington Brick & Tile Company as "complainant," to United Fuel Gas Company as "applicant," to Huntington Development & Gas Company as "intervening petitioner," and states that the facts established were:

"First. That complainant is now being served with a satisfactory supply of gas by the intervening petitioner, and that the United Fuel Gas Company would not be able to render any better service.

"Second. That petitioner made complaint, not because of any failure of service by the intervening company, but for the sole purpose of getting the service at a lower rate, to which the United Fuel Gas Company had been limited by the commission.

"Third. That the applicant is not personally in a position to serve the complainant without the expenditure of large sums of money for increased supply and facilities, and that other industrial and domestic consumers, as evidenced by at least one application already filed, and other portended by the s everal groups of counsel who have intervened with briefs as amici curiæ, will be demanding like service, and for no better reason, and with like result to the intervener."

Huntington Development & Gas Company intervened as a defendant in this case. It furnishes gas to both the petitioners at 26 cents net per 1,000 cubic feet for the first 150,000 cubic feet, and 25 cents per 1,000 cubic feet for additional gas. The rate of United Fuel Gas Company, referred to in the second paragraph above, is 5 cents lower per 1,000 cubic feet (plus discount for prompt payment) than the rate of the Huntington Development & Gas Company. The facts presented in this case as to adequate service and as to the purpose of the applicants are the same as in the former case.

1. The defendants took no evidence in this case tending to show that the same conditions exist now as are stated in the third paragraph of the opinion in the former case. They merely filed here the record in case No. 1614. The evidence in that case was taken in July of 1925; in this case it was taken in May and June of 1928. No applications from other patrons of the intervening defendant for service from the United Fuel Gas Company now portend. On the contrary, four large consumers of industrial gas, whose plants are connected with the pipe lines of both defendants, indicate satisfaction with the higher rate by taking gas exclusively from Huntington Development & Gas Company, or from both defendants without discrimination.

The daily requirements of both defendants do not exceed 1,000,000 cubic feet of gas. It now appears that United Fuel Gas Company has lost two customers, Owens Bottle Company in 1925 and International Nickel Company in 1927, who jointly had taken from it approximately that quantity. No proof is offered to show that the amount of gas available to United Fuel Gas Company is less now than when it supplied the two companies above mentioned. If there has been no diminution of its supply, and no increase in industrial or domestic...