Katz Drug Co. v. Kansas City Power & Light Co.
| Decision Date | 13 May 1957 |
| Docket Number | No. 22447,22447 |
| Parties | KATZ DRUG COMPANY, Respondent, v. KANSAS CITY POWER & LIGHT COMPANY, Appellant. |
| Court | Missouri Court of Appeals |
Spencer, Fane, Britt & Browne, Irvin Fane, Arthur J. Doyle, Kansas City, for appellant.
Dick H. Woods, Kansas City, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, of counsel, for respondent.
BOUR, Commissioner.
Katz Drug & Company brought suit against Kansas City Power & Light Company to recover part of the total amount paid by plaintiff to defendant for electric current furnished to plaintiff at a building located at 1001 Main Street, Kansas City, Missouri, during the period from September 1, 1946 to January 31, 1950. The petition was based upon a written contract between the parties made pursuant to Rule 35 of defendant's General Rules and Regulations. Rule 35 had been filed with and approved by the Public Service Commission of Missouri, and it was made a part of the contract by reference. Plaintiff claimed that it fully performed 'its obligations under the contract'; therefore it was entitled to a refund equal to the difference between (1) the total amount paid by it, at the direct current rate, for electric current furnished by defendant at 1001 Main Street during the period mentioned above, and (2) the total amount it would have paid for such service during the same period had the lower rate for alternating current been applied, the difference between the two amounts being $1,582.30. Defendant, in its answer, admitted the execution of the contract, denied that plaintiff had performed its 'obligations under the contract', and pleaded that the circuit court had 'no jurisdiction over the subject matter placed in controversy by plaintiff's petition', which plea was overruled. The trial was before the court, a jury having been waived, and resulted in a judgment in favor of plaintiff for $1,582.30 with interest in the amount of $450.95, a total of $2,033.25. Defendant has appealed.
The case was submitted to the court upon a stipulation of facts, the testimony of two witnesses, and certain exhibits. The stipulated facts are as follows:
'1. Plaintiff (Katz Drug Company) is now and at all times hereinafter mentioned was a corporation organized under the laws of the State of Delaware and duly qualified and authorized to do business in the State of Missouri. Plaintiff is now and at all times hereinafter mentioned was engaged in the retail drug business.
'2. Defendant (Kansas City Power & Light Company) is now and at all times hereafter mentioned was a public utility corporation organized and existing under the laws of the State of Missouri and engaged in supplying both alternating current and direct current electrical power and energy to consumers in Kansas City, Jackson County, Missouri, and environs.
'3. On or about August 1, 1946, defendant, filed pursuant to law and the regulations of the Public Service Commission of the State of Missouri, Rule 35 of its General Rules and Regulations, as part of its published rates and tariffs. Said commission approved said Rule 35 effective September 1, 1946, in the following form:
'4. At and prior to September 1, 1946, the date of the filing of said Rule 35, plaintiff leased and occupied the premises located at 1001 Main Street, Kansas City, Missouri (SE Corner of 10th and Main Streets), and operated a retail drug store at such premises, which said store was carried by plaintiff on its books as its store 'No. 5.' The connected lighting and power load at such premises was equipped for direct current operation and not for alternating current operation. Defendant furnished direct current electric service to the plaintiff as the occupant of such premises through its DC Meter No. 223-S-144081 as Account No. 4-078-29420.
'5. After the filing of said Rule 35 with the Public Service Commission of Missouri, defendant, in pursuance thereof, and on or about the 14th day of October, 1946, entered into a written contract with plaintiff as follows:
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