Main Realty Co. v. Blackstone Valley Gas & Elec. Co.

• Decision Date: 31 July 1937
• Docket Number: No. 7704.,7704.
• Citation: 193 A. 879
• Court: Rhode Island Supreme Court
• Parties: MAIN REALTY CO. v. BLACKSTONE VALLEY GAS & ELECTRIC CO.

193 A. 879

MAIN REALTY CO.

v. BLACKSTONE VALLEY GAS & ELECTRIC CO.

No. 7704.

Supreme Court of Rhode Island.

July 31, 1937.

COPYRIGHT MATERIAL OMITTED

Exceptions from Superior Court, Providence and Bristol Counties; Alexander L. Churchill, Judge.

Action by the Main Realty Company against the Blackstone Valley Gas & Electric Company. Decision for plaintiff, and case transferred from Superior Court on defendant's exceptions.

One exception sustained and other exceptions overruled, and on condition of remittitur Superior Court directed to enter judgment for plaintiff on decision, as modified by remittitur.

Hinckley, Allen, Tillinghast & Wheeler, Harold A. Andrews, and Noel M. Field, all of Providence, for plaintiff. Edwards & Angell, Edward Winsor, and William H. Edwards, all of Providence, for defendant.

FLYNN, Chief Justice.

This is an action of the case brought, under the provisions of General Laws 1923, c. 253, § 43, to recover damages for alleged undue and unreasonable discrimination against the plaintiff by the defendant, a public service corporation. After a trial in the superior court without a jury, a decision was rendered in favor of the plaintiff for $13,530.54, and the case is now before us on the defendant's exception to this decision and various exceptions to rulings by the superior court before and during the trial.

The main features of the case are as follows: The plaintiff was the owner of a large building in the city of Pawtucket in this state and within the territory served by the defendant and was a customer of the defendant for electricity. It let the space in this building to some thirty tenants, wholly or mainly for manfacturing purposes. Each of these tenants was a customer of the defendant for electricity.

On March 7, 1931, the plaintiff made a written request to the defendant relative to being billed for all electrical energy to be furnished to its Goff Mill property through a master meter. After holding the request for eleven weeks, the defendant refused by letter of May 21, 1931, as follows: "On account of this Company's policy and regulations, which it is believed are for the best interests of electric users in Pawtucket, we cannot sell you electricity for resale to tenants in your building, known as the Goff Mill. We are reluctant to refuse your request in this matter for our interests are parallel with yours in the desire to keep your building filled with good tenants. Unfortunately, however, such circumstances as the recent decision of the Supreme Court in connection with the New Jersey sub-metering case confirms our feeling that we are following the course which public policy directs. In most cities the practice of sub-metering is not allowed or it is being withdrawn."

On May 11, 1932, the plaintiff made a similar request to the defendant, which was refused by the defendant thirteen days later by letter of May 24, 1932, for the reason that, "Much as we would like to grant your request in this matter, we do not feel that the resale of electricity is of general advantage to our customers, and consequently we cannot deviate from our rules."

On November 18, 1932, the request was again renewed and, after conferences on the subject, was again refused by the defendant by letter of February 11, 1933, saying: "It is with a good deal of regret that I am compelled to say that I do not see any way in which our terms and conditions as filed with the Public Utilities Commission offer any loop-hole through which we could arrange for you to have sub-metering and resale of electricity in your Pawtucket building."

The plaintiff claims that, for some years previous to its first request, the defendant had been furnishing several competitors of the plaintiff, by contract with them and through master meters, with electricity to be sold by them to their respective tenants substantially as requested by the plaintiff, and that these contracts were not terminated by the defendant with reasonable diligence after the plaintiff's request, as they might have been by their terms, but were continued until long after the plaintiff's first request; that substantially similar arrangements were made by the defendant with two other customers after that request; and that two at least of the defendant's customers continued to enjoy such privilege after July 1, 1932, when a proposed new rule, as filed by the defendant itself with the Public Utilities Commission, was to become effective against submetering or reselling by any customer; and that one of these customers was given such preference even after October 4, 1933, when the present action was begun.

The plaintiff claims also that, because of the service supplied by the defendant under these contracts and their unreasonable continuance after the refusal of the plaintiff's requests for the same kind of service, it was subjected to an "undue or unreasonable prejudice or disadvantage in any respect whatsoever" within the meaning of G. L. 1923, c. 253, § 40, and was entitled thereby to maintain this action under section 43 of the same chapter.

The defendant claims that these arrangements were substantially different from what the plaintiff requested for itself, were justified by the special circumstances under which they were entered into, and were not inconsistent with its refusal of the plaintiff's request.

All the counts of the amended declaration base the plaintiff's right to recover specifically and squarely on the statute. G.L.1923, c. 253, §§ 40, 43. These sections provide as follows:

"Sec. 40. If any public utility shall make or give any undue or unreasonable preference or advantage to any particular person, firm, or corporation, or shall subject any particular person, firm, or corporation to any undue or unreasonable prejudice or disadvantage in any respect whatsoever, such public utility shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than two hundred dollars nor more than five hundred dollars for each offense."

"Sec. 43. If any public utility shall do or cause to be done or permit to be done any matter, act or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter or thing to be done by it, such public utility shall be liable to the person, firm, or corporation injured thereby, in an action of the case, to be brought within three years from the time the cause of action accrues and not after, for the amount of damage sustained in consequence of such violation: Provided, that any recovery as in this section provided shall in no manner affect the recovery by the state of the penalty prescribed for such violation."

The first count of the plaintiff's amended declaration sets out, in paragraph "Third," the plaintiff's following claim:

"That during said period the defendant subjected the plaintiff to an undue and unreasonable prejudice and disadvantage contrary to sections 40 and 43 of chapter 253 of General Laws of Rhode Island 1923, in that

"(a) Although during said period, the defendant furnished competitors of the plaintiff, to wit, landlords of various other buildings in said Pawtucket and the City of Central Falls who were engaged, as was the plaintiff as aforesaid, in letting and leasing spaces therein to various persons, firms, or corporations, all of which were substantial users of electricity all or a substantial part of the electricity which the said defendant furnished for use in said buildings, through a master meter, that is to say, the aforesaid lessors bought all, or a substantial part of the electricity furnished by the defendant as aforesaid through a master meter; and because of the amount of electricity used were able to and did buy at a lower rate than said lessors and their various tenants could have bought, if said electricity had been separately metered to said lessors and their various tenants, and that said lessors by buying at this low rate submetered and sold said electricity to their various tenants at a profit, although the said lessors sold said electricity to their said various tenants at the same or a lower rate than said various tenants could buy electricity from the said defendant, if the said defendant had separately metered said electricity to the said various tenants.

"(b) And although on or about the first day of March, 1931, and at various times subsequent thereto during said period, the plaintiff requested the defendant to furnish it with a master meter as the said defendant had furnished as aforesaid said other landlords in said Pawtucket and Central Falls who were engaged as was the plaintiff in letting and leasing space in their buildings as aforesaid, in order that the plaintiff could submeter and sell said electricity to its various tenants at a profit in the same manner as the aforesaid other landlords in said Pawtucket and Central Falls were able to do. Yet, the defendant refused to comply with the plaintiff's requests to furnish it with a master meter as aforesaid but insisted on furnishing electricity separately metered to the plaintiff and to each of the said plaintiff's various tenants."

In the next paragraph follows the allegation of damage to the plaintiff because of being subjected to such undue and unreasonable prejudice and disadvantage.

The second count thereof is substantially the same in structure as the first count, but it also adds a further detail of how the privilege of such service could and did operate to give a preference and advantage to the other landlords, as competitors of the plaintiff, and how the refusal to give the same service to the plaintiff subjected the latter to undue and unreasonable prejudice and disadvantage, to its damage.

The third and fourth counts of the amended declaration also specifically base the plaintiff's complaint and right to recover on the provisions of chapter 253. The language used in these counts is calculated to fit more closely and to follow...