United Gas Corporation v. Shepherd Laundries Co., 11562.

• Decision Date: 01 June 1944
• Docket Number: No. 11562.,11562.
• Parties: UNITED GAS CORPORATION v. SHEPHERD LAUNDRIES CO., Inc.
• Court: Texas Court of Appeals

181 S.W.2d 929

UNITED GAS CORPORATION v. SHEPHERD LAUNDRIES CO., Inc.

No. 11562.

Court of Civil Appeals of Texas. Galveston.

June 1, 1944.

Rehearing Denied August 3, 1944.

Appeal from District Court, Harris County; Norman Atkinson, Judge.

Suit by Shepherd Laundries Company, Inc., against the United Gas Corporation to recover damages for discriminating against the plaintiff in charging it higher rates for natural gas supplied to it in specified periods of time and amounts than defendant charged to other customers under like circumstances. From a judgment for plaintiff, defendant appeals.

Affirmed.

Paul Port and Walter H. Walne, both of Houston (Baker, Botts, Andrews & Wharton, of Houston, of counsel), for appellant.

Edward S. Boyles and M. U. S. Kjorlaug, both of Houston, for appellee.

GRAVES, Justice.

This appeal is from a $5094.10 judgment, entered by the 11st District Court of Harris County, in favor of appellee against appellant, wholly upon a jury's findings in response to special issues submitted, wherein the Gas Company was held to have discriminated against the Laundries Company in this one respect: in having charged it higher rates for natural gas supplied to it in specified periods of time and amounts than it did other named ones of appellant's customers, "under similar and like circumstances".

The right to such recovery was predicated by the court upon Article 1438 of Vernon's Texas Civil Statutes, and the measure thereof—following the appellee's specific declaration of that as its sole resulting damage or injury from the alleged wrongful charges—was arrived at by taking the difference between the aggregate sums of money so paid to appellant by this appellee and those paid it by the others of its customers, under the respective higher and lower sets of rates, whom the jury—in its answers to the issues—found to have been served by it with gas "under similar and like circumstances" as the appellee was, but at the lower rates alleged.

To more correctly state the gist of the action, and in a form approved in the briefs of both litigants: Appellee's petition labeled the suit as one for damages for alleged discrimination in rates, at which gas was sold to it during the period from June, 1934, to October, 1942. It charged that, during such period, appellant supplied gas to appellee at a rate of 19¢, 18¢, 17¢ per thousand cubic feet while, during the same period, gas was supplied to other customers of the appellant (including Public Laundries, Port City Packing Company, Ineeda Laundry, Fehr Baking Company, St. Joseph's Infirmary, Oriental Textile Mills, Texas Creosoting Company, United Creosoting Company) at lower rates; that is, the two Laundries, the Packing Company, the Baking Company, and the Infirmary during part of the stated period were charged 14¢, 13¢, and 12¢, while during another part the Textile Mills and the two Creosoting Companies were charged 16¢ and 15¢; that the appellee was supplied the gas under like and similar circumstances as were the other named purchasers of it. The suit is thus (nominally, at any rate, under the appellee's trial petition) for the difference between the rates actually paid by appellee and the rates it would have paid, if, during these different periods, it had been supplied the gas at the lower rates alleged to have been charged the other referred-to customers, together with interest to the date of the trial on the monthly payments it had so made.

A third party to the suit in the trial court, who had been vouched in by appellant on a cross-claim against him, charging that he owned a one-half interest in the appellee's asserted cause of action against it, R. F. Hibbetts, was awarded a "take nothing" decree in his favor against both the appellant and the appellee, and neither has appealed therefrom; hence that portion of the trial court's judgment, not having been brought here for review, must remain undisturbed.

While appellant did in its motions below for peremptory instructions and judgment non obstante veredicto assert there was no evidence raising the issues given the jury, it has presented here no assignment to the effect that its findings thereon, upon which alone the judgment was so entered for the appellee against it, were either—on the facts—without any evidence to sustain them, or were so against the great weight and preponderance of its entire body as to be clearly wrong; on the contrary, it admits the specific rates charged the appellee itself, as well as those charged the other consumers it grounded its cause of action for discrimination upon, to be correct; but, while so conceding the facts to be, it planted its main defense upon the claim that the appellee—as a matter of law—had fundamentally failed to either plead or prove any valid cause of action against it, because it had neither alleged, proved, nor pled any damages to its business as constituting the proximate result of the discrimination so declared upon.

Therefore, on the coming in of the jury's verdict finding the discrepancies indicated in detail as to dates, consumers, and amounts substantially as declared upon by the appellee, having, as indicated, during the trial first moved for peremptory instructions in its favor on the same ground, appellant then duly followed with its motion below, praying the court to enter judgment in its favor notwithstanding.

After an extended hearing before the trial court, that motion was overruled, as well as appellant's subsequent one for a new trial on the whole cause; hence this appeal.

In this court appellant repeats the contentions it made below, its leading ones being that the court erred in not sustaining its motions for peremptory instruction and for judgment notwithstanding the jury's verdict; that Article 1438, Revised Civil Statutes of Texas, lends no support whatever to the appealed-from judgment, since it "is a simple statutory enactment of the American common law rule", which "made no requirement as to equality in rates, except in those cases where unequal rates were charged customers in direct competition with others."

Its further presentments challenge as error these rulings of the trial court: (1) In excluding the testimony of J. V. Strange as to the value of service as a factor in rate making; (2) in admitting evidence as to certain other rates than those alleged in the appellee's trial petition; and (3) in including $1554.69 in the judgment on the theory that the appellee was entitled to service at the 14¢, 13¢, and 12¢ rates from June, 1934, to July 25, 1935.

The appellee, in turn, defends the recovery so awarded it as being entirely consonant with the cited statute, as construed by the appellate courts of Texas, the evidence, and the jury's unchallenged verdict thereon.

It characterizes its suit as being "in the nature of one for money had and received, wherein appellee seeks to recover moneys unlawfully exacted from it, which the appellant unlawfully retained". In doing so, it relies upon some "conclusions" filed by the trial court in overruling appellant's motion for judgment non obstante veredicto, of which those deemed most material were as follows:

"The evidence shows no applicable rates to have been fixed by any administrative authority. The evidence of Mr. Strange and Mr. Simons, defendant's executives (which is the only evidence on the point), shows that the elements considered by defendant in fixing a rate to industrial consumers were: (1) Value of service to consumer; (2) Load; (3) Volume; and (4) Competition. There were no published definitive schedules of defendant as to their industrial consumers, unless the above rate-factors constituted such schedules.

"The jury answered special issues submitted to it that certain consumers enjoying a lower rate were served under `Similar and like circumstances' as the plaintiff.

* * * * *

"In the Doering case Justice Baugh, ([Texas Power & Light Co. v. Doering Hotel Co., Tex.Civ.App.] 147 S.W.2d [897], page 902, column 1, paragraphs 2 and 3) states that—as to the consumers there involved —there were no fixed classifications as between them and no published rates as applicable to differing classes; that, therefore, whether or not such consumers were similarly situated to Doering presented a fact question. I think that is the fact situation in this case. There does not appear to have been any fixed classification between industrial customers of the defendant as applicable to differing classes, and that similarly a fact situation was thereby presented to be determined by the jury based upon the evidence before it. In the Doering case, under those circumstances, recovery was affirmed by Justice Baugh, in effect lowering Doering's rate to that enjoyed by other customers similarly situated, and fixing that as Doering's measure of damage.

"Justice Sharp for the Supreme Court, in affirming the case , 162 S.W. 2d [938], page 941, column 1, paragraphs 3 and 4) stated: `Doering is therefore entitled to recover damages for such discrimination.' The damage which Doering sought was the difference between the rate paid by Doering and the lower rate paid by other consumers alleged to be similarly situated, and so found by the jury, and not loss of profits, or damage to business. Therefore, * * * it is my belief the Supreme Court has decided the point in the Doering case, as well as by its action in dismissing the Writ of Error in the Hilltop case [infra.]"

This record is bulky, the briefs greatly extended, and the arguments have run far afield; but this court is constrained to hold that, when the controversy is held down to the facts alleged and shown to have attended the dealings of these two parties, the cause becomes a comparatively simple one, the rules of law governing which have now been declared by our appellate courts in a series of decisions, some of them having been rendered since this trial below, to-wit: Ford v. Rio Grande Valley Gas Co., 141 Tex. 525, 174 S.W.2d...