State ex rel. DePaul Hospital School of Nursing v. Public Service Commission

• Decision Date: 07 December 1970
• Docket Number: No. 25450,25450
• Citation: 464 S.W.2d 737
• Parties: STATE of Missouri, ex rel. DePAUL HOSPITAL SCHOOL OF NURSING, a Corporation, Complainant-Respondent, v. PUBLIC SERVICE COMMISSION of the State of Missouri, William R. Clark, Chairman, Charles J. Fain, marvin Jones, Howard Elliott, Jr., and Willard Reine, Commissioners, and Southwestern Bell Telephone Company, a corporation, Appellants.
• Court: Missouri Court of Appeals

Page 737

464 S.W.2d 737

88 P.U.R.3d 412

STATE of Missouri, ex rel. DePAUL HOSPITAL SCHOOL OF

NURSING, a Corporation, Complainant-Respondent, v. PUBLIC SERVICE COMMISSION of the State of Missouri, William

R. Clark, Chairman, Charles J. Fain, marvin Jones, Howard

Elliott, Jr., and Willard Reine, Commissioners, and

Southwestern Bell Telephone Company, a corporation, Appellants.

No. 25450.

Kansas City Court of Appeals, Missouri.

Dec. 7, 1970.

Motion for Rehearing or Transfer to Supreme Court Denied

Feb. 1, 1971.

Application to Transfer Denied April 12, 1971.

Jeremiah D. Finnegan, Gen. Counsel, Dale Sporleder, Asst. Gen. Counsel, Jefferson City, for Public service Commission of Missouri.

William C. Sullivan, James E. Taylor, St. Louis, for Southwestern Bell Telephone Co.

Norman Bierman, Stuart M. Haw, Jr., Anderson, Gilbert, Wolfort, Allen & Bierman, St. Louis, for DePaul Hospital School of Nursing.

FLOYD L. SPERRY, Special Commissioner.

DePaul Hospital School of Nursing, a corporation, receives telephone service from Southwestern Bell Telephone Company, a corporation, in St. Louis, Missouri. It filed a complaint againt Southwestern, before the Public Service Commission, charging that Southwestern was discriminating against it in the matter of rates charged, under the provisions of 'Public Service Commission Law', R.S.Mo., 1959, Section 392.200, sub-sections 1, 2 and 3. A hearing was held and the Commission dismissed the complaint. This order was reversed by the Circuit Court of Cole County. Southwestern and the Commission appeal.

Southwestern is a public Utility. Its services are divided into various classifications, with different service groups, usage, customer and rate characteristics applying to each classification. The charges for these various groups, so classified, are set forth in 'tariffs' filed with the Commission. Some of such classifications of service are residence, business, private branch exchanges of several types. in this case we are interested in 'commercial branch' and 'hotel' service. The latter customers are charged lower rates than the former.

DePaul Hospital, a corporation, has operated 'DePaul Hospital School of Nursing', a corporation, a training school for nurses, since 1930, in conjunction with the hospital. An eight story nurses' residence is located adjacent to the hospital and connected thereto by a corridor. in it are two hundred rooms, one hundred fifty occupied by nurses in training, the others by their female relatives and friends, and by females having relations with the hospital, who are transients. There is a lounge, a ballroom, sundeck, air conditioned 'rumpus' room with recreational facilities, an auditorium and 'gym', a library, laundry and other facilities.

In this building are two jundred bedrooms, each with a telephone. There are also twenty other telephones. The occupants of each of these rooms were permitted to make and receive local and long distance calls. The corporation paid all charges. There is a separate switchboard therein, with three trunk lines. Complainant had a hotel license from the city of St. Louis. This was required by the City of St. Louis.

Prior to 1968, DePaul Hospital was billed monthly for service to it and to the nurses' home. Thereafter it was separately billed and it is complaining that its rates are discriminatory. The charges were those prescribed under Southwestern's tariff for commercial flat rate business, private exchange service at $28.50 per trunk per omonth, and $1,50 per month for each telephone. Complainant contends that it should have been charged the lower 'hotel' rate, which was paid by the Missouri Athletic Club and Evangeline Residence, both in the city of St. Louis and by other 'hotels' in that city. It contends that it received the same identical service as was received by the other named institutions, and that Southwestern discriminated against it, in violation of Section 392,200, subsections 1, 2, 3, supra. The basis of the charge of discrimination is the higher rate charged to it while a lower rate was charged to others who received substantially the same service.

Section 392.200 forbids discrimination in charges for doing a like or contemporaneous service with respect to communication by telephone under the same or substantially the same circumstances and conditions. Complainant claimed that it was charged a much higher rate than was charged other customers (under the hotel rate) who received substantially the same services under substantially the same circumstances and conditions. The Circuit Court, on review, stated that the pleadings, testimony, evidence and briefs 'show that this was the issue to be tried on the complaint and this was the issue tried.' We hold that analysis to be correct.

Nowhere in Southwestern's provisions concerning 'hotel' rates is there any definition of a 'hotel'. There was testimony of a qualified telephone cost analysis consultant, a former employee of Southwestern, who gave testimony based on documents emanating from the offices of Southwestern. It was shown that the 'hotel' rate would apply if:

1. The business had a hotel or motel license where applicable.

2. The customer must provide services as follows: (a) Room telephone for guests; (b) local and long distance service must be permitted to guests over room telephone.

It would appear that, under that evidence, complainant is qualified to receive the hotel rate.

The Evangeline Residence enjoys the hotel rate. It has two...