Kousal v. Texas Power & Light Co.

• Citation: 179 S.W.2d 283
• Decision Date: 22 March 1944
• Docket Number: No. 8179.,8179.
• Parties: KOUSAL et al. v. TEXAS POWER & LIGHT CO.
• Court: Supreme Court of Texas

Page 283

179 S.W.2d 283

KOUSAL et al. v. TEXAS POWER & LIGHT CO.

No. 8179.

Supreme Court of Texas.

March 22, 1944.

Rehearing Denied April 26, 1944.

Error from the Court of Civil Appeals of Tenth Supreme Judicial District.

Action by Louis Kousal and others against the Texas Power & Light Company concerning charges made for electricity. Judgment for plaintiff was reversed by the Court of Civil Appeals, 170 S.W.2d 278, and plaintiffs bring error.

Judgment of Court of Civil Appeals affirmed.

George Clark, Harold O. Clark, and John B. Fisher, Jr., all of Waco, for petitioners.

Luther W. Davis, of Dallas, Arthur P. Bagby, of Austin, and Walter H. Walne, of Houston, amici curiæ.

Bryan & Maxwell, John Maxwell, and W. E. Terrell, all of Waco, Black, Graves & Stayton and Chas. L. Black, all of Austin, Burford, Ryburn, Hincks & Charlton, Logan Ford, and F. M. Ryburn, Jr., all of Dallas, for respondent.

BREWSTER, Commissioner.

This suit is a controversy between the petitioners, Louis Kousal and Ed Kousal, and the respondent, Texas Power & Light Company, concerning charges made and collected by the latter for electric current furnished petitioners for lighting purposes from January 1, 1918, to October 31, 1938. On a jury verdict, favorable to the Kousals, the trial court rendered judgment in their favor for $7,288.44. That judgment was reversed by the Court of Civil Appeals and the cause rendered for the respondent, Associate Justice Hale dissenting. 170 S. W.2d 278, 288.

Much of the dispute in this Court relates to the nature of the cause of action pleaded and proved by petitioners in the trial court and asserted by them in the Court of Civil Appeals. Respondents contend that petitioners are urging here a theory different from that advanced in the courts below. It is necessary to determine that question first, because litigants are restricted here to the theory of recovery asserted below. Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238, 245.

The Kousals alleged that the defendant utility was supplying electric power and current to its customers in Waco first under a contract with the city and thereafter under an ordinance passed by the city's board of commissioners, which adopted schedules of rates applicable to various classes of consumers of power and current in the city; that, under both the contract and the ordinance, the utility agreed and was required to furnish power under the general power rate, which it designated as the F—1; that it "has had only one printed form of F—1 rate, which by its terms has provided that it was a power rate"; that the F—1 schedule was available to all power consumers having as much as one horse power connected and operated as much as one hour per week. They alleged, further, that the utility owed them the duty "to furnish power and current and billing schedules without arbitrarily, unjustly and unlawfully discriminating" between them and other power and current consumers being rendered similar service under similar circumstances—that is, it owed them "the duty of operating its business without unlawfully and unjustly discriminating," either as to service or rates. They alleged that, as operators of a wholesale and retail fish and meat market, they used a considerable amount of machinery and equipment driven by electric motors and that, therefore, they were industrial power consumers within the contemplation of the aforesaid contract and ordinance and within the contemplation of the rates, rate schedules, billing practices and designations of the utility; that, nevertheless, the utility "unlawfully and unjustly discriminated" against them in not placing their market on the F—1 schedule as to the electric current consumed by them for both power and lighting; that this alleged discrimination arose from the fact that it was billing eleven named concerns in Waco on the F—1 as to both their power and light consumption, which concerns were being served under similar and like circumstances as were the Kousals. Their prayer was for recovery of the difference between what they paid during the time in question with their power consumption billed on the F—1 and their lighting consumption on another rate and what they would have paid had they been billed on the F—1 rate as to both power and lights. (Italics ours.)

Their theory of recovery is further disclosed by the very first special issue submitted to the jury, namely, "Do you find from a preponderance of the evidence if any, that in January of 1918, the Texas Power and Light Company was billing some one or more of the electricity consumers in the City of Waco on the F—1 rate as to their entire electric bill, both power and lights?" This was followed by issues designed to determine whether these other "such consumers, if any" had billing factors similar to those of the Kousals' market. (Italics ours.)

It is apparent, therefore, that the Kousals took the position in the trial court that the F—1 power rate was applicable to both their power and light consumption, not because it had been approved and adopted by the City of Waco as a power and lighting rate, but because the utility, through the action of some of its agents, had so applied it to eleven other designated consumers or to "some one or more" of them. Any doubt that such was their contention is wholly dispelled by statements made by their leading counsel in his argument before the jury. For example, he said, "They (the utility) know that if they had wanted to change this F—1 rate so as to make it applicable to the power and lights for the picture shows, or anybody else, so that they could prefer them over Mr. Louis Kousal, all they had to do was to go down to the board of Commissioners of the City of Waco and get permission to do it." Again he said, "They (the utility) have had an F—1 rate that they know they couldn't change without authority of the commissioners of the City of Waco and they haven't made any effort to change it." And, further, he said, "The court is not asking you what Mr. Blair (head of the utility's rate department) might have done, because if he wanted to he could have changed this F—1 rate any way on earth he wanted to do it, if the city would permit him to do it." (Italics ours.)

That they did not change that position in the Court of Civil Appeals appears from the following quotation of the second and third paragraphs of the "Statement of the Nature of the Case," made in the brief filed by them as appellees in that court:

"The rate involved in this cause was designated by the Texas Power & Light Company as the F—1, commonly known as the franchise power rate, since the same was available by the contract between the appellant and the City of Waco, and the ordinances which succeeded said contract, to all power consumers in the City of Waco having as much as 1 horsepower of connected load which was operated as much as one hour per week.

"The theory upon which the plaintiffs sought and were allowed recovery in this case was that the Texas Power & Light Company discriminated against them, in that the F—1 rate was applied to other customers situated the same and similarly as plaintiffs, in so far as the application clause was concerned, on their entire electric bill, both power and incidental lighting, while the defendant failed and refused to make the same character of application to these plaintiffs under the same rate. (It appeared that the company did in fact make such application to plaintiffs' business for a period of about four months, but failed as to the balance of the period in question.) It was contended by the plaintiffs that no new classification or charge under the F—1 rate was made, as required by the contract between the Texas Power & Light Company and the City of Waco and the ordinance succeeding said contract justifying the preferment of such customers, but that the same was pure discrimination." (Italics ours.)

Then, in their first counter proposition, they point out that the contract and ordinance provided "the method by which the Texas Power & Light Company could change any of its published rates, and required the amendments to be filed with the City"; and then they assert that "the undisputed evidence shows that appellant did not design and file with the City a separate F—1 rate applicable only to the consumers shown to be preferred in the billing under the F—1 rate."

Thus is asserted a theory of recovery which we think finds no support in the basic principles governing utility rates and rate making. It is axiomatic that there is a public...