Leslie v. Houston Natural Gas Corp.

• Decision Date: 26 May 1955
• Docket Number: No. 12808,12808
• Citation: 280 S.W.2d 353
• Parties: Mrs. Bethel LESLIE, a feme sole, Doing Business As Leslie Baking Company, et al., Appellants, v. HOUSTON NATURAL GAS CORPORATION, Appellee.
• Court: Texas Court of Appeals

Page 353

280 S.W.2d 353

Mrs. Bethel LESLIE, a feme sole, Doing Business As Leslie Baking Company, et al., Appellants, v.HOUSTON NATURAL GAS CORPORATION, Appellee.

No. 12808.

Court of Civil Appeals of Texas, Galveston.

May 26, 1955.

Rehearing Denied June 16, 1955.

Fred W. Moore, Monteith, Baring & Monteith, Houston, Dan Moody, Austin, for appellants.

Fulbright, Crooker, Freeman, Bates & Jaworski, Leon Jaworski, Hugh Q. Buck and L. Keith Simmer, Houston, for appellee.

HAMBLEN, Chief Justice.

This suit was instituted in the District Court of Harris County by the appellants seeking a temporary and a permanent injunction to restrain appellee from taking any action to collect moneys due for gas furnished to appellants by appellee except such moneys as would be payable under appellee's schedule of rates designated as CI-202and 202-L.Appellants also sought a declaratory judgment with reference to future obligations of appellants, as industrial consumers, which might be incurred for gas furnished to them by appellee in the future, and a mandatory injunction to compel appellee to furnish gas to appellants at the above designated rates until all consumers similarly situated should case receiving gas at such rates.By supplemental pleadings, appellants also prayed for judgment against appellee for the difference between the amounts paid by them for gas furnished, and the amounts which would have been paid had such gas been charged for at the rates provided by Schedules CI-202 and 202-L.

Appellee answered by general denial, and filed a cross-action to recover for gas furnished by it to appellants, alleging that it was entitled to be paid therefor under the terms of rate schedules designated as CI-303 and 404.

With the issues thus joined, appellee filed a motion for summary judgment, which upon hearing was granted by the trial court to the extent of denying to appellants all relief sought by them, and granting to appellee judgment against appellants on its cross-action, but expressly providing that the amount of damages recoverable by appellee upon such cross-action was to be determined on further hearing.Appellants' appeal from such order was dismissed by this Court for lack of jurisdiction.Writ of error was refused by the Supreme Court.

Upon return of the litigation to the trial court, the appellee urged its motion for summary judgment with respect to the recovery sought in its cross-action.This motion was granted upon hearing, and a final judgment entered disposing of all issues raised by the pleadings.The effect of such judgment is to declare the rates provided for in schedules designated CI-303 and 404 to be the legal rate which appellee was entitled to charge appellants for gas furnished from and after the dates on which such rates were established, to deny to appellants all injunctive relief prayed for, and to grant judgment to appellee for gas furnished by it to appellants based upon the rates provided for by Schedules CI-303 and 404.

Before stating the complaints made by appellants by points of error here presented, the facts giving rise to this litigation, which are in large measure undisputed, should be stated.

Rates at which gas would be furnished to all consumers other than domestic or residential consumers were established by appellee in 1946 and set forth in schedules designated as CI-202and 202-L.The details of the rates provided for by such schedules is not material except to say that all parties agree that prior to March 5.1951, such rates represented the established rate for gas furnished to consumers such as appellants.On March 5, 1951, appellee withdrew Schedule CI-202 as representing the rates at which gas would thereafter be furnished to commercial and industrial consumers, and published and placed in effect a new schedule appplicable to such consumers. which it designated as CI-303, and which provided for rates higher than those set forth in the withdrawn Schedule CI-202.On March 5, 1951, when appellee declared the new Schedule CI-303 to be the established rate at which gas would be furnished to commercial and industrial consumers, there were outstanding unexpired contracts with certain of such consumers which provided for the furnishing of gas at the rate specified in Schedule CI-202.As to such contractual consumers, appellee continued to furnish gas at the CI-202 rate as contracted for, but as such contracts expired, tendered gas to such consumers, as well as to new customers, only at the CI-303 rates.It appears to be undisputed that at the time of the entry of the judgment appealed from, and so far as the record discloses, at the present time, there remain several industrial or commercial consumers, who by virtue of possessing unexpired contract with appellee, continue to receive gas at the rates provided for by Schedule CI-202.

In August, 1952, appellee published a new schedule as representing the established rate for gas furnished to industrial and commercial consumers.By such publication, appellee declared Schedule CI-303 to represent the rates at which gas would be furnished to any such consumer who would in writing contract for the purchase of gas for a minimum period of one year.As to such consumers who declined to enter into such contract, appellee declared a new schedule designated as CI-404 as representing the established rate for non-contract consumers.The rates published in Schedule CI-404 are higher than those published in Schedule CI-303.All litigants agree that all of the rates published in any of the schedule which have been mentioned are within the limits set by City of Houston OrdinanceNo. 290 which declares the fair and reasonable rate to be charged for gas.

All of the appellants are industrial or commercial consumers of gas, who as customers of appellee, were, prior to the publication of Schedules CI-303 and 404, furnished gas at the rates established by Schedules CI-202 and 202-L, but who, at some time subsequent thereto have been tendered gas only at the rates provided for in Schedules CI-303 and 404.Certain of appellants paid the higher rates under protest, and as plaintiffs, sought judgment against appellee for the excess above the rates scheduled as CI-202 and 202-L which they have paid.Others of appellants refused to pay any amount in excess of the rates scheduled as CI-202and 202-L.As to them, appellee, by cross-action, sought, and was granted judgment for the difference between the amount which they had paid and the amount which would be due under the terms of Schedules CI-303 and 404.Except in so far as any judgment rendered may be executed, the interests, rights and contentions of all appellants are identical.

Appellants present seven points of error.The fundamental legal question involved however is incorporated in their points numbered one to four, inclusive, which they have grouped for the purpose of argument.Since it appears to this Court that the determination of the question there presented is determinative of this appeal, they will be considered before appellants' remaining points are stated.

By points one to four, inclusive, appellants contend that appellee, as a public utility, is obligated to furnish gas to appellants at the lowest established rates for industrial consumers in Harris County, which, they contend, under the facts stated, is represented by Schedules CI-202 and 202-L, and that the existence or non-existence of written contracts is immaterial; and that a difference in rate base upon the existence or non-existence of a written contract constitutes unlawful discrimination in violation of Article 1438, V. A.T.S.It is further their contention that the undisputed facts establish unlawful discrimination entitling all of appellants to the injunctive relief prayed for, and those of appellants who have paid in excess of the rates established by Schedules CI-202 and 202-L to judgment against appellee for such excess.

In their brief, both litigants have cited and analyzed numerous authorities from this and other jurisdictions.We feel safe in assuming that this Court has had the benefit of having its attemtion directed to every decided case which could be of assistance in the determination of the question presented.The labor which would otherwise be involved in reaching the proper determination of the conflicting contentions which are so ably presented appears to this Court, however, to have been heretofore in every material respect performed by the Supreme Court of Texas in its decision of the case of United Gas Corporation v. Shepherd Laundries Co., Inc., 144 Tex. 164189 S.W.2d 485.We feel that the legal principles which that decision so authoritatively established, when considered in the light of the undisputed facts presented by this present record, beyond any doubt, compels this Court to overrule appellants' points one to four, inclusive.To such an extent is this true, that we consider a statement of the facts there involved, together with the legal principles stated by the court, to be in order here.

That suit, United Gas Corporation v. Shepherd Laundries Co., supra, was instituted in Harris County by Shephered Laundries Co. for damages because United Gas Co. charged it a higher rate for gas furnished than it did other customers under similar and like circumstances.The suit was for the difference between the rate paid by the plaintiff and the lower rate paid by other similar customers.Based upon jury findings that the favored customers were served under similar and like circumstances, and upon the undisputed facts that they received gas at lower rates, judgment was rendered for plaintiff in the sum of $5,094.10, which was affirmed by this Court.181 S.W.2d 929.The Supreme Court of Texas reversed both courts.The opinion was written by Folley, Commissioners, and adopted by the Supreme Court.In it Judge Folley reviews at length the development of the law applicable to the fact situation there...