Texas Power & Light Co. v. Doering Hotel Co., 8924.

Citation147 S.W.2d 897
Decision Date29 January 1941
Docket NumberNo. 8924.,8924.
CourtCourt of Appeals of Texas

Appeal from District Court, Bell County; Few Brewster, Judge.

Suit by the Doering Hotel Company against the Texas Power & Light Company to recover for overcharges and discrimination on electric current furnished during the period from 1928 to 1938. From a judgment for plaintiff, defendant appeals.


Burford, Ryburn, Hincks & Charlton and Logan Ford, all of Dallas, and Cox & Brown, of Temple, for appellant.

Lee Curtis, of Belton, and Stahl & Sohn, of San Antonio, for appellee.

BAUGH, Justice.

Suit was by the Doering Hotel Company, a private corporation, against the Texas Power & Light Company, a public service corporation, to recover for over charges and discrimination on electric current furnished the former by the latter corporation at Temple, Texas, during the period from 1928 to 1938. Trial was to a jury on special issues, all of which were answered in favor of appellee, plaintiff below, and judgment rendered against appellant for $14,467.50; hence this appeal.

Frank A. Doering built the Doering Hotel in Temple, Texas, in 1928, and owned and operated it in his individual capacity until 1935, when it was incorporated, and thereafter operated as a corporation. It will be hereinafter designated, for brevity, as the Doering. In 1928 he entered into a written contract with the Texas Power & Light Company (for brevity hereafter referred to as T P & L) to furnish current for power and lighting in the operation of the hotel. Claims of overcharges and discrimination were made by Doering in 1931, and in June of that year an adjustment was made whereby T P & L allowed Doering a credit of $2,758 on his account. Again in May, 1932, upon similar complaints, T P & L again allowed Doering another credit of $1,876.90.

This suit was filed in May, 1938, and tried upon a first amended original petition filed in January, 1939, the claim of overcharge and discrimination covering the period from March 30, 1928, when the original contract was made, to May 20, 1938. The basis of the cause of action asserted involved two elements: The first predicated upon the method of metering the current for which the Doering was charged; and the second upon the ground that the Doering was charged a higher rate for current by T P & L than it charged other customers similarly situated, in that such other customers were charged a flat rate of 2 cents per kilowatt hour (hereafter indicated as K W H); whereas, the Doering was charged on what was designated as an L P rate. The latter rate provided for a minimum fixed charge based upon horse power, a rate of 4 cents per K W H until a designated amount of current was used; and thereafter on a sliding scale graduated downward as the total current consumption increased. Under the latter method the charge for the quantity of electricity used by the Doering exceeded the 2 cents per K W H charged other consumers.

The allegations were, and undisputed proof showed, that the transformer, through which the current from the "high line" or power transmission line was reduced or "stepped down" so that it could be used in the hotel, was placed in a vault in the basement of the hotel and no other customers were served through it; whereas, at the Kyle Hotel, also located in Temple and served by T P & L, the transformer was placed on poles outside of the hotel and numerous other customers served through it. In addition to this difference relating to the use of the transformers, the meter used for the Doering was placed outside of the vault, ahead of, or on the power side of the transformer. This resulted in metering the current before it reached, or passed through, the transformer. This method was termed primary metering, and the user thus paid the T P & L for the current lost in the transformer and not used by him. In the case of Kyle Hotel and some other large users of electricity furnished by appellant, the meter was placed behind the transformer, and this method was termed secondary metering, in which the T P & L absorbed the transformer loss, and the customer was charged only for the current actually used by him. This situation presented the basis for the Doering's claim: first, an alleged discrimination by appellant between the Doering and other consumers similarly situated, or having similar "material billing factors" in rate charged for the current actually used; and, second, that the Doering was required to and did pay for the current lost in the transformers; whereas, other consumers similarly situated did not.

The appellant herein, in addition to general and special exceptions and general denial, defended on the grounds: (1) That when the Doering Hotel was built Doering had requested that the transformer for his current be placed in the vault of his hotel; that as a result no other users of current could be served through it, thus requiring that an entire bank of transformers be set aside to his particular use; and that in such cases the uniform custom and practice of utility companies was to meter the customer primary instead of secondary; (2) that over such period of ten years, Doering, with knowledge of all the facts, had paid his bills voluntarily, and therefore could not now recover; (3) that in the adjustments and credits allowed Doering in 1931 and 1932 for discriminations and overcharges, Doering had released all the claims he now asserts for discriminations and overcharges occurring prior to the last date of settlement in May, 1932; (4) that his asserted claims were barred by the two and four-year statutes of limitation.

By supplemental petition Doering alleged that the 1931 and 1932 settlements did not cover nor include discriminations against him resulting from the different methods of metering; and that subsequent to the May, 1932, settlement and contrary to appellant's written contract with him, contrary to the law against discriminations between consumers of electric current, and contrary to the express assurances of appellant's officers and agents then made that no further discriminations would occur, such discriminations were continued; and that appellant did not discover, and could not by the use of reasonable diligence have discovered, this fact until the year 1936. And by trial amendment Doering further pleaded that during the period of time involved in this suit he paid the sums demanded of him by appellant for fear that appellant would cut off his current if he did not.

Due to the fact that the Doering Hotel was, for a part of the time involved, in the hands of a receiver, the special issues submitted applied in part to different periods of time between March 30, 1928, and May 20, 1938; but we do not deem it necessary to segregate these periods here. In so far as the issues presented are concerned the material findings of the jury may be summarized as follows: They found

1. That between 1932 (the year in which the last settlement between Doering and appellant was made) and May 20, 1938, T P & L furnished to other consumers situated "in so far as their material billing factors are concerned" under the same or similar circumstances that Doering was, at a flat rate of not exceeding 2 cents per K W H.

2. That after the 1932 settlement and prior to May 7, 1936, Doering failed to discover that he was being so discriminated against.

3. That he could not, by the exercise of ordinary prudence during such period, have discovered such facts.

4. That the officers and agents of appellant had, at all times subsequent to the 1932 settlement, whenever the matter of rates was discussed, assured Doering that he was being given the best rate available to consumers of his class.

5. That Doering believed and relied upon such assurances.

6. That during said 10-year period T P & L furnished current to other customers similarly situated in so far as material billing factors were concerned, which it metered secondary.

7. That Doering did not prior to May 7, 1936, come into possession of facts which would cause him to believe that he was being discriminated against in this method of metering.

8. That at no time prior to May 7, 1936, did Doering discover that such other users were being metered secondary.

9. That he could not in the exercise of ordinary prudence have discovered such facts.

10. That appellant had furnished other consumers similarly situated to Doering, but metered secondary, a flat rate of not exceeding 2 cents per K W H.

11. That the transformer loss, as between primary and secondary metering, was 10.4%.

12. That such transformer losses were not considered in the 1931 and 1932 settlements between the parties hereto.

13. That Doering did not know when he paid his bills from May, 1932, to March, 1936, that Scott & White Hospital, Scott & White Dairy Farm, and King's Daughters Hospital, all at Temple, were being billed on a flat 2-cent per K W H rate.

14. That Doering did not know prior to May 7, 1936, that the Kyle Hotel was being metered secondary.

15. That during said period Doering and his agents, etc., would not, in the exercise of ordinary prudence, have discovered that the Kyle Hotel was being metered secondary.

Based upon these findings and upon the uncontroverted evidence as to the current consumed by Doering and the amount paid by him therefor, the court rendered judgment in favor of Doering for the amount above indicated, from which T P & L has appealed.

The record presented is voluminous and the manner in which the appeal is presented has made necessary an examination of the entire statement of facts. Except in one or two instances, hereinafter noted, appellant has not by assignment nor proposition attacked specific findings of the jury, either as being unsupported by any evidence, or as being contrary to the overwhelming weight and...

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