Missouri Gas & Electric Service Co. v. Rea & Page Milling Co.

• Decision Date: 01 February 1926
• Parties: MISSOURI GAS AND ELECTRIC SERVICE COMPANY, A CORPORATION, RESPONDENT, v. REA AND PAGE MILLING COMPANY, A CORPORATION, APPELLANT.
• Court: Kansas Court of Appeals

279 S.W. 727

220 Mo.App. 1067

MISSOURI GAS AND ELECTRIC SERVICE COMPANY, A CORPORATION, RESPONDENT, v. REA AND PAGE MILLING COMPANY, A CORPORATION, APPELLANT.

Court of Appeals of Missouri, Kansas City

February 1, 1926

Appeal from the Circuit Court of Pettis County.--Hon. Dimmitt Hoffman, Judge.

AFFIRMED.

Judgment affirmed.

Harvey & Bellamy for respondent.

R. H Duggins and Alf F. Rector for appellant.

BLAND J. Arnold, J., concurs; Trimble, P. J., absent.

OPINION

BLAND, J.--

This is a suit on an account stated to recover for electricity furnished by plaintiff and used by defendant. The amount claimed to be due to plaintiff was not disputed by the defendant. However, defendant filed a counterclaim seeking to recover for alleged overcharges paid by it to plaintiff for electricity consumed. The case was tried before the court without the aid of a jury. At the conclusion of the testimony the court rendered judgment in favor of plaintiff, both on plaintiff's cause of action and defendant's counterclaim, and defendant appealed to this court where the judgment of the trial court was reversed and the case remanded. Plaintiff applied to the Supreme Court for a writ of certiorari which was issued, and the Supreme Court quashed our opinion. [See State ex rel. Missouri Gas & Electric Service Co. v. Francis H. Trimble et al., 271 S.W. 43, where a statement of the facts will be found.] The case has been re-argued in this court and again submitted to us for a decision.

Defendant states that in view of the holding of the Supreme Court the only question to be determined is "did the service company actually measure the demand charge;" that the rate on file with the Public Service Commission under which it is claimed the charge was authorized does not permit plaintiff to change the charge from a flat rate fixed by the contract at seventy-one kilowatts to a flat rate fixed by plaintiff at eighty-six kilowatts, it only gave the company the right to change the demand charge by actual monthly measurements. It is also claimed that the trial court has never had an opportunity to try this issue.

Defendant differs as to what is to be decided and calls our attention to the record which shows that some months after the electrical apparatus was installed in defendant's mill the load was increased by additional installations before the increase charges were made, and defendant did not show that the amount of the increased load was less than the difference between seventy-one kilowatts and the eighty-six kilowatts for which plaintiff charged. So that, regardless of the question of measurement, the burden was upon plaintiff to show that neither by the rated horse-power method nor by the measurement method would the maximum demand amount to as much as eighty-six kilowatts; that defendant failed to meet this burden.

However accepting defendant's theory as to what is now before this court, we are not able to agree with it that this cause should be reversed and remanded. Defendant points out that there is testimony in the record, in addition to that of W. G. Rea mentioned in the opinion of the Supreme Court, tending to show that there was no actual measurement of the maximum demand. In this connection defendant directs our attention to Rea's testimony that when the increase was first made, he went to the power engineer and asked him why the change was made and his answer was "because the company needed the money." The power engineer did not say that an actual measurement of the maximum demand showed eighty-six kilowatts instead of seventy-one kilowatts. Defendant also points out that for thirty-three months after defendant started to use the electricity there was no difference whatever in the monthly demand charge made. Summing up the testimony, defendant says "appellant urges that the testimony of the power engineer and the further undisputed fact that for thirty-three months, each month, there was no change whatever in the demand charge." Of course, all this was a question for the court sitting as a jury. In the first place he was not required to believe that the engineer made the statement attributed to him by...