Texas Power & Light Co. v. Kousal

• Decision Date: 25 February 1943
• Docket Number: No. 2449.,2449.
• Parties: TEXAS POWER & LIGHT CO. v. KOUSAL et al.
• Court: Texas Court of Appeals

170 S.W.2d 278

TEXAS POWER & LIGHT CO. v. KOUSAL et al.

No. 2449.

Court of Civil Appeals of Texas. Waco.

February 25, 1943.

Rehearing Denied April 8, 1943.

Appeal from District Court, Nineteenth District, McLennan County; R. B. Stanford, Judge.

Action by Louis Kousal and others against the Texas Power & Light Company to recover damages for unlawful discrimination in charges for electric current furnished plaintiffs by defendant. Judgment for plaintiffs, and defendant appeals.

Reversed and rendered.

John Maxwell, of Waco, Logan Ford, of Dallas, W. E. Terrell, of Waco, and Black, Graves & Stayton (on appeal only), of Austin, for appellant.

George Clark, Harold O. Clark, and John B. Fisher, Jr., all of Waco, for appellees.

TIREY, Justice.

Plaintiffs brought this suit against Texas Power & Light Company, a public service corporation, to recover for unlawful discrimination for charges for electric current furnished to them by defendant during the period from January, 1918 through October, 1938. On the verdict of the jury the court awarded judgment in favor of plaintiffs against defendant for the sum of $7,288.44, with interest at six per cent per annum from January 1, 1941 until paid. The award of $7,288.44 is made up of the following items: (a) The sum of $4,195.79, being the difference between the amount paid over the period in controversy and what plaintiffs would have paid had the F-1 rate been applied to their combined power and lighting loads; (b) interest in the amount of $3,092.65, ascertained by mathematical calculations from the stipulation in the evidence that each monthly bill was paid on or before the first of the following month. Defendant seasonably presented its motion for an instructed verdict, and thereafter its motion for judgment notwithstanding the verdict, both of which were overruled, and it has appealed.

This action of the trial court is assailed substantially on the ground that the F-1 rate for power and a separate rate for lighting were defendant's established, published and prevailing rates to the public; that such rates were not destroyed or rendered less binding upon the public, individual consumer, or the utility by a few departures from adopted and otherwise universally applied rates.

This point requires a comprehensive statement. Plaintiffs were engaged in operating a retail and wholesale meat market. In addition to the current used for lighting, they used electric motors for operating refrigeration units and other machinery in the conduct of their business. The action is grounded upon a discrimination in the application of the Company's F-1 rate. Plaintiffs alleged "that the F-1 schedule was available to all power consumers having as much as one horse power connected which was operated as much as one hour per week, and the defendant at no time had any other type of F-1 rate available, either to all customers or to any special type of customers in the City of Waco; and the defendant actually represented to these plaintiffs that they were being given the best application of the F-1 rate available, and impliedly represented that it was the best application of such rate by extending the same to and applying the same to plaintiffs' business without disclosing that the F-1 rate was being extended to other power consumers in the Waco territory both on power and lights. That at the time the defendant began billing these plaintiffs on the F-1 rate as to power and a separate rate as to lighting, defendant represented to plaintiffs as a fact that said billing schedule was the best schedule available upon which to bill consumers of the class to which plaintiffs belonged; and in this connection it is shown to the court that the defendant wholly failed to inform and advise these plaintiffs that other consumers were being billed both as to the power and lighting upon the F-1 rate, and wholly failed to inform plaintiffs that it had extended the F-1 rate to other power consumers within the class of consumers entitled to the F-1 rate both as to power and lighting. That said representations on the part of the defendant and its duly authorized agents were false, and that the action of the defendant in failing to disclose that the F-1 schedule as to both power and lights was being applied to other consumers was fraudulent and in violation of the duty which defendant owed the plaintiffs not to discriminate against them as to rates and service." There was proof to the effect that the F-1 rate (the franchise power rate) was applicable to current used for powering motors and not to current used for lighting and was designed to give a lower average to the larger users and was available to all power consumers having as much as a one horse power connected which was operated as much as one hour per week. From 1918 through October, 1938, plaintiffs were metered and billed for power on the F-1 rate separately from lighting, except that for a period of five months they were metered and billed for all of the current used by them solely on the basis of power under the F-1 rate. There was testimony to the effect that the Light Company had 142,000 customers, 16,000 of which were in the Waco territory.

It was stipulated "that the Texas Power & Light Company has at all times since it began its operation been operating under a franchise with amendments to the franchise in the City of Waco granted by the governing body of the City of Waco." The F-1 rate had been in effect from 1917 down to the date of the trial. It was revised in January, 1917, 1922, 1931, and November, 1935. In the 1917 revision it was designated as "Schedule F-1, Industrial Power-Meter Rate"; in the 1922 and 1931 revisions it was designated as "Schedule F-1, Industrial Power-Optional Meter Rate"; and in the 1935 revision it was designated as "Schedule F-1 General Power Service"; and we find no changes in the revised schedules that are pertinent to the matters in this case. In the 1935 revision there was a clause in the contract under "Application of Schedule" that specifically provided: "Applicable where no specific schedule is provided to alternating current power service of one contract horse power or more and is to be metered and billed separately from lighting."

The jury's findings pertinent to the point are as follows: (a) That the Light Company was billing one or more consumers in the City of Waco on the F-1 rate for both power and lights from January, 1918 through October, 1938; that plaintiffs were similarly situated with reference to the written provisions showing the availability of the said F-1 rate to consumers in Waco from January 1, 1918 through October, 1938; (b) that plaintiffs were similarly situated with reference to the service conditions, operating conditions and cost factors determining the application and availability of the F-1 rate to such consumers from January 1, 1918, through October, 1938; and (c) that the billing of some consumers in the City of Waco on the F-1 rate as to both power and lights was authorized.

Plaintiffs relied, in part, upon the testimony of witnesses in the employ of the Light Company to show that said Company discriminated against them in the application of the F-1 rate. The local manager (Williams) testified, in part, substantially as follows: That since 1912 appellant has been the only concern in this territory engaged in the business of generating and selling electric current; that if the customer had as much as a one horse power load and wanted the F-1 rate, he was metered and billed for power on that rate separately from lighting; he identified a letter dated in September, 1921, written by him to The Cooper Grocery Company (one of the eleven), which letter stated in part: "Effective with your meter readings from July 28th to August 29th, we are billing the total consumption of the electricity at your plant under the F-1 schedule * * *" that he wrote this letter in order to make an adjustment of the controversy that had arisen with reference to the bill for electric current; "didn't anybody tell me to do that * * * I think I just took it on myself"; "when I wrote that letter I exceeded my authority; I did not have any right to change the rate * * * I decided that that was the thing to do and put them on that rate without any authority to do it"; that he did not have anything to do with rates but carried out instructions; that he never did extend the F-1 rate to a customer or apply it in a different manner from the application clause on his own authority; that if he ever did anything with reference to those rates different to what the application clause stated, someone told him to "in writing"; that he put the picture shows on the F-1 schedule; that there is no distinction between power that the Light Company brings into Waco as furnished to its consumers here. "Q. So, if I understand your testimony, you are testifying positively that The Cooper Grocery Company, Western States Grocery Company, Mailander Co., Dr. Pepper Bottling Company, Coca-Cola Bottling Company, Crawford-Austin Manufacturing Company, Interstate Theaters, Clifton Manufacturing Company, the Baptist Sanitarium, the Trautschold Company, the Methodist Orphanage (the eleven), Allen-Morrow Filling Station, Perry Allen Filling Station and Smith Planing Mill ought not to have been on the F-1 rate as to both their power and lights? A. That is correct"; that he knew nothing about the foregoing concerns or the application clause of the F-1 rate that would have justified him as manager, or any other employee, giving the foregoing concerns the F-1 rate as to both power and lights; that he did not know who told the office within the last two years to stop billing those concerns on the F-1 rate as to both power and lights; "Sammons was talking to me about it. Q. Who did he tell you caused the change? A. I do not remember that. He would have to tell you that * * * I will tell you why we changed it. Q. All right. A. Put them on a...