Southeastern Land Co. v. Louisville Gas & Electric Co.

Decision Date21 January 1936
Citation90 S.W.2d 1,262 Ky. 215
CourtKentucky Court of Appeals

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by the Southeastern Land Company against the Louisville Gas &amp Electric Company. Judgment for defendant, and plaintiff appeals.


W. W Downing, of Louisville, for appellant.

Crawford Middleton, Milner & Seelbach, of Louisville, for appellee.

CREAL Commissioner.

The Southeastern Land Company, a corporation, is appealing from a judgment sustaining a demurrer to and upon its failure to further plead, dismissing its petition whereby it sought to recover $4,473.66, including $1,251.18 interest, as alleged overcharge for electricity furnished it by the Louisville Gas & Electric Company, a public service corporation, from and including August, 1923, up to and including March, 1929.

Appellant owns a large office building in the city of Louisville known as the Realty building. Appellee under an ordinance of and contract with such city has for a number of years been furnishing electric current for light and power purposes to the city and its citizens. Section 3 (c) of the ordinance reads:

"The rates for electricity shall be uniform for equal service, and rates for power shall be the same to all consumers using equal amounts of electricity, under similar conditions, as to the maximum load and the relation of maximum load to the average. All rates for electricity shall be filed with the Board of Public Works of the City of Louisville and be open for public inspection. The company may make special contracts with consumers at rates based upon the amount of electricity used and the condition of the contract, which special rates may be less than those charged to consumers taking a smaller amount of electricity or taking electricity under different conditions, but said special rates shall be the same to all consumers using a like amount of electricity under the same contract conditions. A schedule of such special rates and contract conditions shall be filed with the Board of Public Works and each and every charge therein shall also be filed with the Board of Public Works and be open to public inspection."

On January 15, 1919, real estate agents acting for appellant signed an application to appellee for electric service for the Realty building which, among other things, provided:

"All services to be rendered under this agreement shall be charged for at the rate fixed in Schedules D--1, F--3, of the Company's rates, which Schedules are filed with the Board of Public Works of the City of Louisville, and made a part of this agreement."

This application was signed by an agent of appellee and constituted the contract between the parties. Schedule D--1 was a general lighting rate, and F--3 a general power rate, and current was furnished and paid for during the period of alleged overcharge under these schedules.

In addition to some of the foregoing facts, it is alleged in substance and effect in the petition that during the period of the alleged overcharge there was in effect a schedule known as G--3, containing rates that should have been charged plaintiff; that other customers using equal amounts of electricity under similar conditions as to the amount of maximum load and the relation thereof to the average were given an opportunity to and did use the rates charged for electricity under the G--3 schedule; that plaintiff was not given equal opportunity with other patrons to use the G--3 schedule of rates because it had no notice of such schedule, and the company in fraud of plaintiff's substantial rights intentionally failed to notify it of the available cheaper rate, although it knew it was greatly to plaintiff's advantage to accept the G--3 schedule.

It is further alleged that on August 24, 1920, plaintiff sold the Realty building to one M. E. Jonnard; that on June 20, 1921, in a suit pending in the Jefferson circuit court, a receiver was appointed by the court to handle the property, and on February 10, 1923, plaintiff again acquired it, the sale thereof to M. E. Jonnard having been set aside by the court as void; that the contract of January 15, 1919, between appellant and appellee, under its terms was not transferable and new occupants of the premises are required to make application for service before commencing the use of electricity; that when the property was sold to Jonnard and again when it was placed in the hands of a receiver, the contract with appellant terminated, and therefore during the time complained of in the petition, no contract for the sale or use of electricity was entered into or existed between the parties to this action.

The petition gives a tabulation of the amounts paid for current for the various months during the period complained of under schedules D--1 and F--3, and the amounts that would have been paid for the corresponding period under schedule G--3, and the difference, whether greater or less, in plus and minus columns, and thus arrives at the amount of the alleged overcharge.

By answer appellee traversed the allegations of the petition and affirmatively alleged in effect that the rates under schedules D--1 and F--3 were general and uniform without any minimum requirements as to the amount of current used; that beginning in 1913 and continuing up to the time the answer was filed, appellee, as it was authorized to do under the ordinances and contract, had filed with the board of public works schedules of special or optional rates and contract conditions from time to time, and that such rates had during all such times been available to consumers who came within the classes designated in such schedules and applied alike to all consumers who availed themselves of such rates and using a like amount of electricity under the same...

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9 cases
  • Grindsted Products, Inc. v. Kansas Corp. Com'n
    • United States
    • Kansas Supreme Court
    • 25 Abril 1997
    ...of a public utility to provide affirmative individual notice to a customer of optional rates included Southeastern Land Co. v. Louisville G. & E. Co., 262 Ky. 215, 90 S.W.2d 1 (1936) (utility was required to file its schedules of special and optional rates with the board of public works, an......
  • City of High Point v. Duke Power Co.
    • United States
    • U.S. District Court — Middle District of North Carolina
    • 9 Agosto 1940
    ...There can be no doubt about the right of a Public Service Corporation to maintain optional schedules. Southeastern Land Co. v. Louisville Gas & Electric Co., 262 Ky. 215, 90 S.W.2d 1; Niven v. Consolidated Edison Co. of New York, 19 P.U.R.,N.S., 387 (1937 N.Y. Pub. Ser. But there is an insu......
  • Agricultural Products Corp. v. Utah Power & Light Co.
    • United States
    • Idaho Supreme Court
    • 2 Diciembre 1976
    ...458, 464, 289 P. 81 (1930); State v. Dept. of Pub. Works, 181 Wash. 105, 42 P.2d 424, 426 (1935); Southeastern Land Co. v. Louisville Gas and Electric Co., 262 Ky. 215, 90 S.W.2d 1, 3 (1936); New Haven v. New Haven Water Co., 118 Conn. 389, 172 A. 767 (Conn.1934); Re A. A. Taxicab Co., 44 P......
  • Southeastern Land Co. v. Louisville G. & E. Co.
    • United States
    • United States State Supreme Court — District of Kentucky
    • 21 Enero 1936
    ...262 Ky. 215 ... Southeastern Land Co ... Louisville Gas & Electric Co ... Court of Appeals of Kentucky. Common Pleas Branch, Second Division ... Decided January 21, 1936 ...         1. Corporations. — Public utilities may not discriminate nor impose different terms and conditions on different persons ...         2. Corporations. — Public ... ...
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