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

Decision Date20 May 1942
Docket NumberNo. 7879.,7879.
Citation162 S.W.2d 938
CourtTexas Supreme Court

Burford, Ryburn, Hincks & Charlton and Logan Ford, all of Dallas, and Cox & Brown and W. R. Brown, all of Temple, for plaintiff in error.

Lee Curtis, of Belton, and Stahl & Sohn, of San Antonio, for defendant in error.

SHARP, Justice.

This suit was instituted by the Doering Hotel Company against the Texas Power & Light Company to recover for overcharges due to discrimination in the sale of electric current to it at Temple, Texas. Trial was to a jury on special issues, and all of such issues were answered in favor of the Doering Hotel Company. On such verdict of the jury, judgment was entered against the Texas Power & Light Company, in favor of Doering Hotel Company, for $14,468.50. This judgment was affirmed by the Court of Civil Appeals. The opinion of that court contains a full statement of the evidence and the contentions of the parties. 147 S.W.2d 897. This Court granted a writ of error.

Hereinafter the Doering Hotel Company will be referred to as Doering, and the Texas Power & Light Company will be referred to as T. P. & L.

The Doering Hotel was constructed by Frank A. Doering in 1928, who owned and managed same. In 1938 the Doering Hotel Company was incorporated, and all the assets of the hotel were transferred to that corporation. The management and operation of the hotel continued practically the same as before the incorporation. Doering had entered into a contract with T. P. &amp L. for the furnishing of light and power to the hotel. T. P. & L. was the only public source of electric current in Temple, Texas. The plans for the hotel called for a number of vaults or compartments in the basement, and Doering agreed that the T. P. & L. might have the exclusive use of one of these vaults in which to place its equipment to serve the hotel with electric current. The plans did not specify where the meter for measuring the current was to be placed, but merely stated that it was to be placed "at the transformer vault." The contract reads in part as follows:

"Subject to the terms and conditions herein stated, the Company will, * * * deliver to the Customer * * * electric power and energy * * * and energy so delivered shall be measured by a meter or meters to be installed by the Company as herein provided at transformer vault * * *

* * * * * *

"The Customer will provide on his premises at points to be mutually agreed upon, a suitable space for the installation of such equipment as Company may deem necessary to enable it to deliver the power and energy herein described."

This suit was filed in May, 1938, and the claim for overcharge and discrimination covers the period from March 30, 1928, when the original contract was made, to May 20, 1938. The cause of action is based upon two elements. One relates to the method of metering the current for which Doering was charged, and the other relates to the fact that Doering was charged a higher rate by T. P. & L. for current than it charged other customers similarly situated. Regarding this second element, it is contended that other customers, similarly situated, were charged two cents per kilowatt hour (which for brevity is indicated KWH), whereas Doering was charged what was known as an L. P. rate. The L. P. rate provided for a minimum fixed charge, at four cents per KWH until a certain amount of current was used, and thereafter the charge was based on a sliding scale graduated downward as the total current consumption increased. Under this method the charge for the quantity of current used by Doering exceeded the two cents per KWH charged other consumers similarly situated.

The jury made the following findings:

1. That the T. P. & L., between 1932 and May 20, 1938, furnished electric current to other consumers similar to Doering at a flat rate not exceeding two cents per KWH.

2. That not until May 7, 1936, after the 1932 settlement, did Doering discover that he was being so discriminated against; and that during such time Doering, by the exercise of ordinary prudence, could not have discovered such fact.

3. That the officers and agents of T. P. & L., whenever the matter of rates was brought up after the 1932 settlement, always assured Doering that he was receiving the best rate of T. P. & L. for consumers in his class; and that Doering believed and relied upon such assurances.

4. That during said ten-year period T. P. & L. furnished current to other consumers similar to Doering which it metered secondary; and that prior to May 7, 1936, Doering did not come into possession of facts which would have caused him to believe that he was being discriminated against in the method of metering; and that, by the exercise of ordinary prudence, he could not have discovered, prior to such date, that he was being so discriminated against.

5. That, as stated, T. P. & L. had furnished electric current to other consumers similar to Doering at a flat rate not exceeding two cents per KWH, and this was metered to them secondary, while that furnished to Doering was metered primary; and that the transformer loss, as between primary and secondary metering, was 10.4 per cent.

6. That the transformer losses in primary and secondary metering were not considered in the 1931 and 1932 settlements between T. P. & L. and Doering.

7. That between May, 1932, and March, 1936, Doering did not know that Scott & White Hospital, Scott & White Dairy Farm, and King's Daughters Hospital, all at Temple, were being billed at a flat rate of two cents per KWH.

8. That prior to May 7, 1936, Doering did not know...

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