May Department Stores Co. v. Union Electric Light & Power Co.

• Decision Date: 30 June 1937
• Parties: May Department Stores Company, Appellant, v. Union Electric Light & Power Company and Cupples Station Light, Heat & Power Company
• Court: Missouri Supreme Court

107 S.W.2d 41

341 Mo. 299

May Department Stores Company, Appellant, v. Union Electric Light & Power Company and Cupples Station Light, Heat & Power Company

Supreme Court of Missouri

June 30, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Harry A Hamilton, Judge; Opinion filed at September Term, 1936 April 21, 1937; motion for rehearing filed; motion overruled at May Term, 1937, June 30, 1937.

Reversed and remanded (with directions).

Edward A. Haid, Sullivan, Reeder & Finley and Lewis, Rice Tucker, Allen & Chubb for appellant.

(1) The contract between plaintiff and The Light & Development Company was of no validity as to service rendered by Union after it filed schedules with the Public Service Commission. Marty v. Kansas City L. & Power Co., 303 Mo 233, 259 S.W. 293; Kansas City L. & P. Co. v. Midland Realty Co., 93 S.W.2d 954; St. Louis S.W. Ry. Co. v. Painton, 275 S.W. 57. (2) This case involves judicial questions, which can only be determined by a court and which it is not the province of the Public Service Commission to determine. State ex rel. v. Pub. Serv. Comm., 308 Mo. 328; State ex rel. v. Pub. Serv. Comm., 275 Mo. 201; State ex rel. v. Pub. Serv. Comm., 303 Mo. 212; State ex rel. v. Pub. Serv. Comm., 316 Mo. 233; State ex rel. v. Pub. Serv. Comm., 327 Mo. 93. (3) Under the facts as found by the referee, and by the trial court, Cupples Station Light, Heat & Power Company is the alter ego, agent, manifestation and instrumentality of Union Electric Light & Power Company; the service rendered plaintiff was in fact rendered by the latter, though in the name of Cupples, and Union's schedule of rates, published and filed with the Public Service Commission, is applicable. Phillips v. Railroad Co., 211 Mo. 436; State ex rel. v. Liberty Natl. Bank, 331 Mo. 386, 53 S.W.2d 902; State ex rel. v. Wright, 95 S.W.2d 804; Southern Pac. Co. v. Interstate Com. Comm., 219 U.S. 498, 31 S.Ct. 279; United States v. Railroad Co., 220 U.S. 273, 31 S.Ct. 387; United States v. Railroad Co., 238 U.S. 525, 35 S.Ct. 873; Chicago, M. & St. P. Railroad Co. v. Minneapolis C. Assn., 247 U.S. 500, 38 S.Ct. 553; United States v. Reading Co., 253 U.S. 26, 62, 40 S.Ct. 434; Central Republic Bank v. Caldwell, 58 F.2d 734; Powell on Parent & Subsidiary Corps., sec. 27, p. 107. (a) The fact findings of the referee have the same status as a special verdict of a jury and if supported by substantial evidence will not be disturbed on appeal -- especially if confirmed by the lower court. Manufacturers Savs. Bank v. Big Muddy Iron Co., 97 Mo. 43, 10 S.W. 865; Roth v. Continental Wire Co., 94 Mo.App. 267, 68 S.W. 594; State ex rel. v. Elliott, 82 Mo.App. 476; Laucieri v. Kansas City Sprinkling Co., 95 Mo.App. 323, 69 S.W. 29; Kline Cloak & Suit Co. v. Morris, 293 Mo. 478, 240 S.W. 96; St. Louis v. Parker-Washington Co., 271 Mo. 242, 196 S.W. 767; Johnston v. Star Bucket Pump Co., 274 Mo. 424, 202 S.W. 1143. (4) Furthermore, a utility cannot lawfully charge more nor less than the rates published in its schedules and amounts paid in excess of the published charges are not voluntary payments. Sonken-Galamba Corp. v. Ry. Co., 225 Mo.App. 1066, 40 S.W.2d 524; Baltimore, etc., Ry. v. Shirk, 104 N.E. 864; Sullivan v. Ry. Co., 121 Minn. 488; Clough v. Boston Ry. Co., 77 N.H. 222. (a) Utilities and their customers do not stand on the same plane and charges collected from customers in excess of the lawful rates cannot be said to have been voluntarily paid. State ex rel. v. C. & A. Railroad Co., 265 Mo. 646; Boston v. Edison Co., 136 N.E. 113; Warren v. Me. Cent. Railroad Co., 135 A. 526; Louisville, etc., Railroad Co. v. Wilson, 32 N.E. 311; Heiserman v. Burlington Railroad Co., 18 N.W. 903. (5) Plaintiff is entitled to recover the charges paid by it for electricity in excess of the rates for electricity published by Union in its schedules filed with the Public Service Commission. State ex rel. v. C. & A. Railroad Co., 265 Mo. 679; White v. Delano, 270 Mo. 38; Sonken-Galamba Corp. v. Mo. Pac. Ry. Co., 225 Mo.App. 1066, 40 S.W.2d 529; Mellon v. Stockton & Lamkin, 326 Mo. 129, 30 S.W.2d 974; McGrew v. Mo. Pac. Ry., 177 Mo. 533, 76 S.W. 995, Id., 230 Mo. 496; Kansas City L. & P. Co. v. Midland Railroad Co., 93 S.W.2d 954; Marty v. Kansas City L. & P. Co., 303 Mo. 233. (6) Plaintiff's right to the application of Union's standard rate cannot be denied because of Union's neglect to request and have plaintiff sign a contract. Bilton Machine Tool Co. v. United Ill. Co., 110 Conn. 417, 148 A. 337. (a) Plaintiff's right to recover cannot be defeated by defendant's failure to ascertain measured "demand." St. Louis S.W. Ry. Co. v. Spring River S. Co., 236 U.S. 718, 35 S.Ct. 456; Davis v. Smutzinger, 281 F. 640; Virginian Ry. v. Lake Coal Co., 5 F.2d 496; Van Dusen, etc., Co. v. Ry. Co., 32 F.2d 466. (b) What construction shall be given a schedule of a public utility, is a question of law. Great No. Ry. Co. v. Merchants Elev. Co., 259 U.S. 285, 42 S.Ct. 479; Davis v. Prairie Pipe Line Co., 298 F. 397; Pillsbury Flour Mills v. Great No. Ry. Co., 25 F.2d 68. (7) Utility schedules must be construed according to their language -- the intention of the framers is not controlling. Southern Pac. Co. v. Lathrop, 15 F.2d 486; Lathrop v. Ry. Co., 10 F.2d 225. (a) Utility schedules, in case of ambiguity, should be construed strictly against the maker and liberally in favor of the public. Lathrop v. Ry. Co., 10 F.2d 225; Southern Pac. Co. v. Lothrop, 15 F.2d 486; Updike Grain Co. v. Railroad Co., 35 F.2d 486; Van Dusen Harrington Co. v. Ry. Co., 32 F.2d 470; Union Wire Rope Co. v. Ry. Co., 66 F.2d 967. (b) Where either of two published rates may be applicable the consumer is entitled to the benefit of the lower. United States v. Gulf Ref. Co., 268 U.S. 543, 45 S.Ct. 597; Rhodes Burford v. Union E. L. & P. Co., 2 P. S. C. 673. (8) Defendant is not entitled to "recoup" or counterclaim for its so-called stand-by service in the absence of pleading as positive in its averments as a petition. Kinney v. Miller, 25 Mo. 576; Mark v. Cooperage Co., 204 Mo. 242; Lindsey v. Nagel, 157 Mo.App. 128; Hay v. Short, 49 Mo. 139; West v. Freeman, 76 Mo.App. 96; Hoffman v. Const. Co., 204 Mo.App. 539, 223 S.W. 815. (a) Without a cross-action, allowances to defendant must be limited to the scope of plaintiff's case as pleaded. Mahoney v. Bostwick, 96 Cal. 53, 30 P. 1020; 1 Pomeroy, Equity, sec. 387, p. 719; 13 Ann. Cases, p. 649; Coerver v. Crescent Lead Co., 315 Mo. 276. (b) There can be no recovery for a special service in the absence of a request that it be rendered. Taylor v. Laird, 1 H. & N. 266; Allen v. Richmond College, 41 Mo. 302; Holmes v. Board of Trade, 81 Mo. 137; Hiemenz v. Goerger, 51 Mo.App. 586; Hartnett v. Christopher, 61 Mo.App. 64. (c) There can be no recovery for a service which is not offered to the public by publication in the schedules and for which no charge is published. Chesapeake & O. Railroad Co. v. Westinghouse, 270 U.S. 260, 46 S.C. 220; Chicago & Alton Railroad Co. v. Kirby, 225 U.S. 155; Clegg v. Railroad Co., 203 F. 971; St. L. I. M. & S. Ry. Co. v. West, 159 S.W. 142; Roberts v. Ry. Co., 185 S.W. 69; Adams Exp. Co. v. Burr Oak, 206 S.W. 173; Davis v. Cornwell, 264 U.S. 560, 44 S.Ct. 410; Dollinger v. Mo. Pac. Ry. Co., 282 S.W. 1047; Richey & Gilbert v. Ry. Co., 204 N.W. 27; Saitta & Jones v. Railroad Co., 179 N.Y.S. 471; American Ry. Ex. Co. v. Peninsula, 130 A. 346; Underwood v. Hines, 222 S.W. 1037; Winn v. American Exp. Co., 128 N.W. 663; Hamlen & Sons v. Railroad Co., 212 F. 324; Pacific F. & P. Co. v. Ry. Co., 186 P. 852. (d) The Railway plant was maintained as a stand-by for Union -- not for plaintiff. (9) Plaintiff is entitled to recover interest from the dates the respective overcharges were collected. Jefferson Savings Assn. v. Morrison, 48 Mo. 273; Pullis v. Summerville, 218 Mo. 624, 117 S.W. 736; Napoleon Hill Cotton Co. v. Dry Goods Co., 203 Mo.App. 25, 217 S.W. 323; Arkadelphia M. Co. v. Ry. Co., 249 U.S. 134, 39 S.Ct. 237. (10) The Statute of Limitations does not apply because of defendant's fraudulent concealment. Pomeroy v. Benton, 57 Mo. 531; Laird v. Keithley, 201 S.W. 1138; Monmouth College v. Dockery, 241 Mo. 522; Thaler v. Niedermeyer, 185 Mo.App. 250; Cottrell v. Krum, 10 Mo. 397. (a) The Statute of Limitations does not begin to run until plaintiff has knowledge of the facts. Central Bank v. Thayer, 184 Mo. 95. (b) The Statute of Limitations does not apply because the alleged overcharges constituted a mutual, open and current account. Roberts v. Neale, 134 Mo.App. 612; 37 C. J. 869; Higley v. Railroad Co., 68 N.W. 829.

McCammon & Sandison, Taylor Sandison and John P. McCammon for respondents.

(1) The petition shows on its face that prior to the acquisition of Cupples' stock by Union, a contract rate was in effect and no action on the part of the utility or the commission changing said contract rate is pleaded. Sec. 5190 (5) (12), R. S. 1929; State ex rel. Laundry Inc. v. Pub. Serv. Comm., 327 Mo. 93, 34 S.W.2d 37. (a) The petition wholly fails to allege that the pleaded schedule rates of defendant Union for electricity cover a like and contemporaneous service performed under the same or substantially similar circumstances or conditions as the service received by plaintiff from Cupples. Sec. 5189 (2), R. S. 1929; State ex rel. Laundry Inc. v. Pub. Serv. Comm., 327 Mo. 93, 34 S.W.2d 37; Boston v. Edison E. I. Co., 136 N.E. 113; (b) The petition shows on its face that plaintiff was receiving service under a contract with and from a plant owned by Cupples, and seeks to apply to such service a rate filed by Union. There is no basis for such application of Union's rate to plaintiff's service absent a commission order to that effect. The jurisdiction of the commission...