Straube v. Bowling Green Gas Co., No. 41307

CourtUnited States State Supreme Court of Missouri
Writing for the CourtDALTON
Citation227 S.W.2d 666,360 Mo. 132
Decision Date13 February 1950
Docket NumberNo. 41307,No. 1
Parties, 18 A.L.R.2d 1335 STRAUBE et al. v. BOWLING GREEN GAS CO

Page 666

227 S.W.2d 666
360 Mo. 132, 18 A.L.R.2d 1335
STRAUBE et al.
v.
BOWLING GREEN GAS CO.
No. 41307.
Supreme Court of Missouri, Division No. 1.
Feb. 13, 1950.
Motion for Rehearing or to Transfer to Court en Banc Denied
March 13, 1950.

[360 Mo. 133]

Page 667

Long & McIlroy, Bowling Green, Rendlen, White & Rendlen, Hannibal, for appellants, William L. Hungate, Troy, of counsel.

[360 Mo. 134] John H. Haley, James D. Clemens, Bowling Green, for respondent.

[360 Mo. 136] DALTON, Judge.

Action in equity by which plaintiffs seek to determine the ownership of and recover an interest in certain funds received by the defendant. The trial court sustained a motion to dismiss and plaintiffs have appealed.

Respondent is a distributor of natural gas within the City of Bowling Green, Missouri. Appellants are some of respondent's customers and the users of natural gas in said city. As representatives of such class, appellants have instituted this action for themselves and for all others similarly situated to compel respondent to pay to its customers their alleged respective proportional interest in two mentioned funds. One fund is the amount received by respondent from the registry of the United States Circuit Court of Appeals of the Eighth Circuit upon the affirmance of a rate reduction order of the Federal Power Commission and the other is the alleged excess amount collected by respondent from its customers after the rate reduction order was in effect as to respondent's purchases of gas and before a new rate had been established to respondent's customers. Appellants asked a 'decree and judgment permanently restraining and enjoining defendant from directly or indirectly claiming or asserting any rights to either of said funds,' determining defendant's indebtedness to plaintiffs 'and ordering and directing defendant to deliver and pay over to plaintiffs and the persons comprising the class which plaintiffs represent, the several amounts so found to be due each.'

Respondent at all times collected for gas sold to its customers at a rate established and approved by the Public Service Commission of Missouri, but during the period in question respondent had been buying gas from the Panhandle Eastern Pipe Line Company, a corporation, and paying therefor at a fixed rate undiminished by the rate reduction order of the Federal Power Commission. The excess so [360 Mo. 137] collected above the new rate was deposited by the Pipe Line Company in the registry of the Federal Court pending the disposition of that litigation. At the close of the litigation, the rate reduction order of the Federal Power Commission was affirmed and a refund was made to respondent of the total excess amount which had been collected by the Panhandle Eastern Pipe Line Company from respondent.

Appellants alleged 'that under an appropriate order of said Unites States Circuit Court of Appeals for the Eighth Circuit, the defendant was permitted to drawn down the sum of Twenty-three Thousand Five Hundred Twenty-nine and 1/100 Dollars ($23,529.01) which was the amount allocated to defendant for the impoundment period October, 1942, through September, 1945, after filing a due and proper undertaking by the terms of which defendant was to pay to the ultimate consumers, being defendant's customers, including plaintiffs, any amounts which a court of competent jurisdiction might determine to be due.' Appellants' claim to this fund is based on the theory that the reduction in the cost of gas to respondent should be passed on to respondent's customers, the ultimate consumers of the gas.

The petition is in two counts and concerns the two funds, one in the sum of $23,529.01, mentioned supra, and the other in the sum of $536.34, which, as stated, represents the alleged excess collected by respondent

Page 668

from its customers for gas at the established rate, after the refund and reduction order were in effect and before respondent, with the approval of the Public Service Commission of Missouri, reduced its rate to its customers. The subsequent rate reduction by respondent to its customers was based upon the fact that respondent was then purchasing gas from the Pipe Line Company at the reduced rate. Appellants further alleged that respondent was under the regulation and control of the Public Service Commission of Missouri and 'earned not less than the maximum return upon the investment as allowed and fixed by the Public Service Commission of Missouri, not including the amount impounded by the U. S. Circuit Court of Appeals for the Eighth Circuit.' Appellants contend that respondent's retention of the funds mentioned constitutes an unjust enrichment of respondent at the expense of its customers and that the customers are entitled to their respective proportional interest in the funds. The trial court sustained a motion to dismiss the petition and assigned as grounds therefor that the court was 'without jurisdiction to determine reasonable rates or to order repayment of moneys received in accordance with rates fixed by the Public Service Commission of Missouri.'

The petition appears to confuse matters within the jurisdiction of the Public Service Commission of Missouri under Article 4, Chapter 35, Sec. 5644 et seq., R.S.1939, Mo.R.S.A., with matters within the jurisdiction [360 Mo. 138] of the circuit court, because appellants not only prayed the court to determine the respective interests of the appellants as a class and as individuals in and to the respective funds, but also prayed for an order requiring respondent to produce its books, records and accounts so that the interest of the appellants and of all of the others in the class with appellants in the fund could be established and determined and so that the investment and the earnings of respondent could be determined. We think the record requires a decision as to whether or not appellants stated a claim upon which relief could be granted for the determination of property rights and for relief in equity, matters within the jurisdiction of the circuit court.

Appellants say that the action is 'purely and simply a matter of unjust enrichment'; that it 'does not involve reasonableness of rate nor return of any money collected under the rate by respondent from its own funds'; that 'the rate had long since been charged and collected in full by respondent'; and that 'at the outset the rate for the respondent was fixed by the Public Service Commission in the regular statutory manner.' There is no contention that respondent at any time collected any amount in excess of the rate filed with and approved by the Public Service...

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10 practice notes
  • Leggett v. Missouri State Life Ins. Co., Nos. 46686
    • United States
    • United States State Supreme Court of Missouri
    • November 14, 1960
    ...in a particular case where the rights of parties litigant are clearly Page 932 defined by statute, see Straube v. Bowling Green Gas Co., 360 Mo. 132, 227 S.W.2d 666; Milgram v. Jiffy Equipment Co., 362 Mo. 1194, 247 S.W.2d 668, 30 A.L.R.2d 925; Aetna Ins. Co. v. O'Malley, 342 Mo. 800, 118 S......
  • Brown v. Brown, No. WD 63547.
    • United States
    • Court of Appeal of Missouri (US)
    • January 18, 2005
    ...occurs when he has and retains money or benefits which in justice and equity belong to another.'" Straube v. Bowling Green Gas Co., 360 Mo. 132, 227 S.W.2d 666, 671 (1950) (quoting Hummel v. Hummel, 133 Ohio St. 520, 14 N.E.2d 923, 927 (1938)). The appellate courts of this state have o......
  • State ex rel. Taylor v. Nangle, No. 41564
    • United States
    • United States State Supreme Court of Missouri
    • February 13, 1950
    ...disclose whatever evidence he has in support of the information contained in the notice. The telephone company must make its own decision [360 Mo. 132] whether the evidence is sufficient to justify discontinuance of the In the instant case the notice from the governor and attorney general d......
  • Landau v. Laughren, No. 48665
    • United States
    • United States State Supreme Court of Missouri
    • April 9, 1962
    ...of the expenditure on the theory of unjust enrichment, citing in support of his contention the cases of Straube v. Bowling Green Gas Co., 360 Mo. 132, 227 S.W.2d 666, 670, 18 A.L.R.2d 1335, Minor v. Lillard, Mo., 289 S.W.2d 1, 3, and Toalson v. Madison, Mo.App., 307 S.W.2d 32, 34-35[1, 2]. ......
  • Request a trial to view additional results
10 cases
  • Leggett v. Missouri State Life Ins. Co., Nos. 46686
    • United States
    • United States State Supreme Court of Missouri
    • November 14, 1960
    ...in a particular case where the rights of parties litigant are clearly Page 932 defined by statute, see Straube v. Bowling Green Gas Co., 360 Mo. 132, 227 S.W.2d 666; Milgram v. Jiffy Equipment Co., 362 Mo. 1194, 247 S.W.2d 668, 30 A.L.R.2d 925; Aetna Ins. Co. v. O'Malley, 342 Mo. 800, 118 S......
  • Brown v. Brown, No. WD 63547.
    • United States
    • Court of Appeal of Missouri (US)
    • January 18, 2005
    ...occurs when he has and retains money or benefits which in justice and equity belong to another.'" Straube v. Bowling Green Gas Co., 360 Mo. 132, 227 S.W.2d 666, 671 (1950) (quoting Hummel v. Hummel, 133 Ohio St. 520, 14 N.E.2d 923, 927 (1938)). The appellate courts of this state have o......
  • State ex rel. Taylor v. Nangle, No. 41564
    • United States
    • United States State Supreme Court of Missouri
    • February 13, 1950
    ...disclose whatever evidence he has in support of the information contained in the notice. The telephone company must make its own decision [360 Mo. 132] whether the evidence is sufficient to justify discontinuance of the In the instant case the notice from the governor and attorney general d......
  • Landau v. Laughren, No. 48665
    • United States
    • United States State Supreme Court of Missouri
    • April 9, 1962
    ...of the expenditure on the theory of unjust enrichment, citing in support of his contention the cases of Straube v. Bowling Green Gas Co., 360 Mo. 132, 227 S.W.2d 666, 670, 18 A.L.R.2d 1335, Minor v. Lillard, Mo., 289 S.W.2d 1, 3, and Toalson v. Madison, Mo.App., 307 S.W.2d 32, 34-35[1, 2]. ......
  • Request a trial to view additional results

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