Scanlan v. Houston Lighting & Power Co., 10018.

• Decision Date: 29 June 1933
• Docket Number: No. 10018.,10018.
• Citation: 62 S.W.2d 537
• Parties: SCANLAN et al. v. HOUSTON LIGHTING & POWER CO.
• Court: Texas Court of Appeals

62 S.W.2d 537

SCANLAN et al. v. HOUSTON LIGHTING & POWER CO.

No. 10018.

Court of Civil Appeals of Texas. Galveston.

June 29, 1933.

Rehearing Denied July 20, 1933.

Appeal from District Court, Harris County; Ben F. Wilson, Judge.

Suit by Kate Scanlan and others against the Houston Lighting & Power Company. From an adverse judgment, plaintiffs appeal.

Affirmed.

Walter F. Brown and J. S. Bracewell, both of Houston, for appellants.

Baker, Botts, Andrews & Wharton, G. G. Gannon, F. G. Coates, and John T. McCullough, all of Houston, for appellee.

GRAVES, Justice.

The appeal, advanced for hearing under the statute, is from an order below refusing a temporary injunction. What is thought to be a proper statement of all material features in the trial court, whether substantive or procedural, is thus taken from the appellee's brief:

"On April 29, 1933, appellants, being the owners of a twelve-story office building located in the business district of Houston, Texas, and known as `Scanlan Building,' filed this suit against appellee, the electric company serving electric energy in Houston and environs and serving such building.

"The allegations of the pleadings stated herein are limited to those deemed pertinent to this appeal.

"In their original petition appellants alleged that the operation of the Scanlan Building requires both alternating current and direct current; that prior to July, 1930, appellants had contracted with appellee separately for alternating current and direct current for said building; that about said time, appellants and appellee had entered into a written contract superseding all prior contracts, by the terms of which contract appellee became obligated to extend electric service to appellants, the service to be used for the operation of said building and to cover all electrical energy and power requirements of appellants at such location, service to be 3-phase approximately 60 cycles 120/240 volts. The rates provided in said contract of July, 1930, were set forth and it was then alleged that such contract was superseded by a contract of November, 1930, containing substantially the same provisions, but providing a different rate.

"It was then averred that after the execution of such contracts, appellee charged appellants only for the alternating current at the rates provided in such contracts and charged appellants the rates provided by ordinance of the City of Houston for direct current; that appellants paid all bills rendered as aforesaid until about October 1, 1932, under protest, and then refused to make further payments without an accounting. It was alleged that appellee by billing appellants for direct current at the ordinance rate, had overcharged appellants $885.00 up to October 1, 1932; that $1393.36 had become due under said contract of November, 1930, for electric service rendered since October, 1932; that for said period appellee had charged appellant $2929.43, whereas only $508.26 was due and owing, which amount appellants had tendered and appellee had refused to accept, and appellee was threatening to discontinue service, to appellants irreparable injury, leaving them without adequate legal remedy, etc.

"There are alternative allegations of discrimination and excessive rates charged, to appellants damage in the sum of $3000.00, for which they sue, but as to which they ask no injunctive relief.

"Injunction is prayed to restrain appellee from discontinuing electric service for said building, or threatening to do so, and to restrain appellee from entering on its records or billing appellants for any electric energy for said building except at the rates provided in said contracts of July and November, 1930.

"A temporary restraining order was issued ex parte and appellee ordered to appear and show cause why a temporary injunction as prayed for should not be granted.

"In response to such order appellee filed its special answer under oath showing cause why appellants should not be granted a temporary injunction, a summary of the facts stated in such answer being as follows:

"For more than ten years the Scanlan Building has been owned and operated by appellants and furnished with electric service by appellee. During this period such building has had two sets of wiring and electrical equipment, one set employing alternating current and the other set direct current. These two types of service are physically separate and distinct and each requires separate generating, distribution, and measuring equipment.

"During this ten year period, direct current for said building (which is practically obsolete and constitutes only about one-third of one per cent. of appellee's total sales) has been provided and paid for at the rates prescribed by Houston city ordinance, and alternating current has been provided and paid for by rates fixed by special contracts.

"Exact copies of the contracts of July and November, 1930, are attached to the answer as exhibits. Such contracts provide that the service to be furnished thereunder shall be 3-phase approximately 60-cycle current with a split voltage, which type of electric service can only be had in alternating current and not in direct current, which facts were at all times known to appellants.

"After the execution of said contracts of July and November, 1930, appellee sent appellants each month a monthly statement for direct current consumed in said building, such consumption being billed at the ordinance rate, and sent appellants each month a separate statement for alternating current billed at the rates provided in the above mentioned contracts, all of which statements appellants paid until about the end of July, 1932. Since July, 1932, separate monthly statements of the kind last above mentioned have been sent regularly to appellants and appellants have paid appellee nothing for either type of service. As of April 19, 1933, there was due and owing to appellee by appellants $2098.60 for alternating current and $850.69 for direct current for said building, or a total amount of $2949.29. Appellee about said date notified appellants that if the amounts due and owing were not paid within five days, it would be compelled to discontinue service for said building, and after receipt of such notice appellants notified appellee for the first time that it was their contention that such contracts of July and November, 1930, covered direct current service for said building as well as alternating current. Appellee will continue furnishing direct current if the amounts due for this type of service are paid and will continue furnishing alternating current if the amounts due for alternating current service are paid.

"Appellants knew and understood prior to and at the time of the execution of the contracts of July and November, 1930, that the same covered alternating current only and that direct current was to be furnished at the ordinance rate as had theretofore been the arrangement, agreement and practice. From July 1, 1930, down to the present appellee has offered and furnished electric service to office buildings in Houston under circumstances...