Texas Power & Light Co. v. Hilltop Baking Co.

• Citation: 78 S.W.2d 718
• Decision Date: 10 January 1935
• Docket Number: No. 1541.,1541.
• Parties: TEXAS POWER & LIGHT CO. v. HILLTOP BAKING CO.
• Court: Court of Appeals of Texas

78 S.W.2d 718

TEXAS POWER & LIGHT CO. v. HILLTOP BAKING CO.

No. 1541.

Court of Civil Appeals of Texas. Waco.

January 10, 1935.

Rehearing Denied February 7, 1935.

Appeal from District Court, McLennan County; Giles P. Lester, Judge.

Action by the Hilltop Baking Company against the Texas Power & Light Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Worsham, Rollins, Burford, Ryburn & Hincks, of Dallas, and Bryan & Maxwell, of Waco, for appellant.

Jos. W. Hale and Geo. Clark, both of Waco, for appellee.

ALEXANDER, Justice.

The Hilltop Baking Company brought this suit against the Texas Power & Light Company to recover for alleged overcharges for electric current furnished by the defendant to the plaintiff from January 1, 1928, to April 1, 1933. The plaintiff alleged, in substance, that the defendant was a public service corporation engaged in furnishing electric current in the city of Waco to the public generally, and was prohibited by law from discriminating against any of its customers; that during the period in question the defendant had two rates or schedules at which it furnished electric current to its customers, which were known as the MR and the LP rates; that the MR schedule was the cheaper of the two rates, and that under plaintiff's set-up, considering the amount of power consumed and other necessary factors, plaintiff was entitled to the benefit of the MR rate; that notwithstanding these facts the plaintiff was billed and required to pay for current consumed by it at the rate provided for in the LP schedule, and as a consequence was overcharged to the amount sued for. Plaintiff further alleged that during said period the defendant had supplied current to other consumers similarly situated as plaintiff, at the rate provided for in the MR schedule, and that as a consequence the plaintiff had been unlawfully discriminated against. The defendant answered by a general demurrer, certain special exceptions, a general denial, and a plea of limitation as to that part of the cause of action accruing prior to November 1, 1930. In reply to the plea of limitation the plaintiff alleged that the defendant had fraudulently concealed from the plaintiff the fact that it was furnishing current to other consumers situated similarly to plaintiff at the rate provided for in the MR schedule, and that plaintiff did not discover the contrary until within less than two years prior to the filing of the suit. The case was submitted to a jury on special issues and resulted in a verdict and judgment for the plaintiff for the sum of $8,742.41. The defendant appealed.

Appellant's first contention is that the plaintiff failed to prove that it was entitled to the benefit of the MR rate during the time in question. For the purpose of discussing this issue, the period in question will be divided into two sections, the first one being from January 1, 1928, to November 1, 1930, and the second one from November 1, 1930, to April 1, 1933.

During the first period, as above referred to, the MR schedule, as published by the appellant, contained the following provisions: "This rate is applicable for service to cotton seed oil mills and grain mills with contracted load of not less than 50 HP, and is to be used only when consumer executes company's standard form of contract covering this class of service."

The proof showed without dispute that during said period the appellee's contracted load exceeded 50 horse power, and that appellee was at all times willing to execute the company's standard form of contract in order to secure the benefit of said rate. The appellee admitted that it was not engaged in operating a cotton seed oil mill nor a grain mill, but alleged that the appellant, by custom and practice, had extended the application of the MR schedule so as to make same applicable and available to all electric current consumers within the vicinity of Waco where the contracted load exceeded 50 horse power, and had not confined the use of said schedule exclusively to cotton seed oil and grain mills. Written contracts entered into by appellant with various customers having contract loads of not less than 50 horse power were introduced in evidence. These contracts showed that during the period in question the appellant had contracted with, and had furnished electric current to, twelve different consumers who were charged and billed under the MR schedule for the current consumed by them. Of this number only one was a cotton seed oil mill and only one was a grain mill. The others were engaged in various businesses, such as creameries, laundries, loading gravel, and the like. The jury found that during said period the appellant furnished electric current at the MR rate to consumers who were situated, in so far as their material billing factors were concerned, under similar circumstances as the plaintiff. We think the evidence above referred to was sufficient to support such finding.

During the second period, from November 1, 1930, to April 1, 1933, the MR schedule, as published by the appellant, contained the following provision with reference to its application: "This rate is applicable for service to grain and feed mills, to partially electrified cotton seed oil mills, to refrigeration plants and other industrial power loads normally operating day and night, with Contracted Loads of not less than 50 HP, and is to be used only when Consumer executes Company's standard form of contract covering this class of service. All electric energy furnished hereunder will be metered by one meter at one common point of delivery on the primary side of the Consumer's step-down transformers. Incidental lighting required by the Consumer in the manufacture of its products will be allowed under this schedule up to 10% of the Contracted Load."

The evidence shows without dispute that during said period appellee had an industrial power load normally operating day and night, with a contracted load of not less than 50 horse power, and that appellee was willing to execute the appellant's standard form of contract covering the service demanded by it. Its factory was equipped for metering the electric energy furnished to it by one meter at a common point at the place specified in the above-quoted application clause. The jury found that during the period in question the incidental lighting required by appellee in the operation of its plant did not exceed 10 per cent. of the contracted load. The appellant challenges the sufficiency of the evidence to support this finding, and, as a consequence, contends that the appellee did not prove that it was entitled to the MR rate during said second period.

There was no direct testimony as to whether or not the electric energy used by appellee for lighting purposes exceeded 10 per cent. of the current consumed by it. We think, however, that there were sufficient circumstances in the case to justify the jury's finding in favor of appellee on this issue. There was ample evidence to establish that no change was made in appellee's plant from January 1, 1928, to the end of the period here in controversy that would materially alter the percentage of electric current necessary for lighting purposes therein. It was undisputed that...