I am unable to agree with the majority of the court, either in their reasoning or in their conclusions. In my judgment it should be held that the doctrine of "primary jurisdiction" is in force in this state, with regard to the public utilities which are under the *Page 60 control of the state "division of public utilities", as successor of the "public utilities commission."
It is true that in the case of Texas Pacific Ry. Co. v.Abilene Cotton Oil Co., 204 U.S. 426, in which this doctrine seems to have first been promulgated, a good deal of weight was given to the consideration, as phrased at page 440, that "if, without previous action by the Commission, power might be exerted by courts and juries generally to determine the reasonableness of an established rate, it would follow that unless all courts reached an identical conclusion a uniform standard of rates in the future would be impossible, as the standard would fluctuate and vary, dependent upon the divergent conclusions reached as to reasonableness by the various courts called upon to consider the subject as an original question." At page 441 the court draws the conclusion that the recognition of the right to bring a court action involving the determination of an established rate "is wholly inconsistent with the administrative power conferred upon the Commission and with the duty, which the statute casts upon that body, of seeing to it that the statutory requirement as to uniformity and equality of rates is observed"; and that it would destroy the prohibitions against preferences and discrimination.
Exactly the same consideration and conclusion apply to matters of regulations, practices and the like, as was held in the later cases in the Supreme Court of the United States which are cited in the opinion of the court in the instant case.
The above consideration does not apply with quite the same force with regard to the respective jurisdictions of state courts and state utility commissions, because the nation is so much larger than any state. But in my judgment it still applies with compelling force; and it seems clear to me that the same conclusion applies to the case of any public utility company operating under the regulation and control of a state public utility commission under an act similar to that in this state, which is closely modeled on *Page 61 that creating the interstate commerce commission. The prime objects of such an act cannot be attained, with any degree of success, unless any question of the reasonableness, validity or conformity with public policy of any rate, regulation, service or practice of such utility company is determined solely by the commission, after hearing with notice to all concerned, and in a decision which is binding on everyone who may be affected by such rate, regulation, service or practice and which is subject to only one appeal to the judiciary.
All of the cases that I have been able to find in which this matter has been decided as to public utility companies operating under the regulation and control of such state commissions are in support of this conclusion and follow the doctrine of "primary jurisdiction" in conformity with the above decisions of the Supreme Court of the United States. Among these are State exrel. City of Billings v. Billings Gas Co., 55 Mont. 102, 173 P. 799 (1918); Doney v. Northern Pacific Ry. Co., 60 Mont. 209, 199 P. 432; Hewett Logging Co. v. Northern Pacific Ry.Co., 97 Wn. 597, 166 P. 1153 (1917); Tacoma Eastern R. Co. v. Public Service Comm. 117 Wn. 609, 202 P. 1 (1921); St.Paul Book Stationery Co. v. St. Paul Gas Light Co.,130 Minn. 71, 153 N.W. 262 (1915); and other cases cited in these cases.
The court in the Doney case, supra, discusses the subject most fully and clearly. There the action was brought by a shipper to recover damages for alleged discrimination and unreasonable freight charges collected by the defendant railroad company from the plaintiff on certain lumber shipments. The court says, at page 227, that the legislature, having by a statute provided for a board of railroad commissioners, "and prescribed its powers, duties and functions, in the fixing of reasonable freight rates and the prevention of discrimination by independent carriers as well as joint carriers, its provisions are, in our opinion, exclusive in so far as plaintiff's alleged rights involved are legislated upon, and the remedies thereby prescribed must be followed." *Page 62
At page 235, the court says: "No cause of action can arise in favor of the shipper until the rate complained of has been modified, by the Railroad Commission upon proper application to it, or by it after judgment of a court of competent jurisdiction in a direct proceeding within the provisions of the statute, determining the rates as fixed by the board to be excessive or unreasonable. The shipper's remedy is to promptly have the rate modified, if unreasonable, by the commission, or to have the reasonableness thereof determined by a court in an action to review the reasonableness of the rates as fixed and established. . . . Plaintiff's remedy was to apply to the Railroad Commission for a modification of the rate established or for the fixing ofa rate in the event no rate had been established." (italics mine)
After discussing this matter under the Interstate Commerce Act and citing many federal cases, and calling attention to the fact that under the federal act the commission was expressly authorized to order the payment of reparation for any unjust rate or discrimination, the court says, at page 236: "The reasoning in the above cases applies with equal force to our statute and to the lack of jurisdiction of the courts to pass upon the reasonableness of the rates and discriminations before the commission has taken action thereon. In other words, before any shipper can recover in the courts damages for excess rates or discriminations, the discriminations or unreasonableness of the rate must first be passed upon by the special tribunal expressly created and authorized by law to handle such matters — the Railroad Commission.
"The fact that the Railroad Commission is not authorized, upon determining that a rate is unreasonable or discriminatory, to order reparation, does not prevent a shipper, after the rate has been so determined by the special tribunal created for that express purpose, from maintaining an action in court to recover damages sustained by him as a result of such unreasonable or discriminatory rate. His action *Page 63 is based upon the fact that such rate has been so declared by the proper tribunal, and the court merely determines the amount of damages, if any, sustained." Were this not the correct procedure under the statute, great and inevitable confusion and uncertainty would result, as there might arise a multiplicity of suits with varied determinations in the several jurisdictions of the state.
In accordance with the view of the Montana court, I am convinced that the fact that the I.C.A. gave the interstate commerce commission, as well as the courts, the power to award reparations to a person damaged by a violation of the act by the carrier, while our public utilities act gave the public utilities commission no such power, is no reason for holding that the doctrine of "primary jurisdiction" does not apply under the public utilities act of this state.
It is worthy of comment that the trial justice in the instant case, in denying in his written decision the defendant's motion to dismiss, which was based on the ground of want of jurisdiction in the court under this doctrine, did not say or even intimate that the doctrine was not applicable to proceedings under our statute, but denied the motion solely on the ground that the case fell within a rule established by the decision of the United States Supreme Court "that if the rule, regulation or practice of the utility is not attacked but the claim of the plaintiff is based on the violation of the utility's own practice or rule, then prior application to the administrative tribunal (interstate commerce commission) is not required."
I agree that on this ground he was justified in denying a similar motion, when made at the trial before any evidence was submitted, and when renewed at the close of the plaintiff's evidence, because it was not then clear whether or not the decision of the case would require a ruling on the nature or validity of the rule, regulation or practice involved in the case. What in my opinion was the proper application of the doctrine in the decision of the case, when all the evidence was in, will appear later in this opinion. *Page 64
The point made now is that in my opinion the doctrine, within the limits defined in the cases on the subject in the United States Supreme Court, should be held to apply to proceedings brought against public utility companies to recover damages for violations of the provisions of our public utilities act.
The plaintiff's principal and almost sole contention upon which it rests its right to recover is that it had a right underthe defendant's established practice, to enjoy the privilege of having a master meter and of submetering, by which it could make a profit by buying electricity at the defendant's low large-quantity rate and reselling it to its tenants at higher rates; that it was damaged by the wrongful denial to it of that privilege and not by wrongful allowing of that privilege to other customers of the defendant; and that therefore the proper measure of its recoverable damages is the profits which it would have made by thus buying and selling electricity, if this privilege had been granted to it by the defendant.
After a careful consideration of the written decision of the trial justice, I am convinced that he rested his decision for the plaintiff squarely on the above grounds, contended for by it; and that he found the defendant's refusal to grant submetering privileges to the plaintiff, to be wrongful because against the established practice of the defendant to grant such privileges to customers in a similar situation to that of the plaintiff. In my opinion the decision must stand or fall according to whether that finding was correct or not; and in my opinion it was not correct.
The Rhode Island public utilities statute does not require the filing with the commission by any public utility company of any statement of its regulations or practices with reference to the service rendered by it, though it may file such statement. According to the cases and other authorities, as I understand them, the result of this state of the law is that the regulations and practices actually adopted by such a company and regularly applied are the standard *Page 65 regulations and practices for that company, in the absence of any contrary ruling by the commission; and that anyone in interest who is not satisfied with that standard can file a complaint thereof with the commission or any tribunal which has succeeded to its functions under the act. The Rhode Island statute specifically provides for the filing of such a complaint and for a hearing and decision thereon by the commission. A vital question in the instant case, then, is what was the standard practice of the defendant with regard to submetering at the time when the plaintiff's request for the privilege of submetering was refused.
In my opinion the principles governing, in a situation such as that in the present case, are best set forth in an opinion byCardozo, J., in Postal Telegraph-Cable Co. v. AssociatedPress, 228 N.Y. 370. There the question was one of rates and not of practices or service, but the principles involved are the same. In that case the utility company was not required by the I.C.A. to file its rates with the commission, and, without filing, it had adopted a new and reduced schedule of rates for private-wire service. It had given the benefit of the new rates to all other customers having private-wire service, but had denied such benefit to the defendant, because there was an unexpired contract between them for the old rates, which the court held was no justification for the discrimination. The action was one for recovery of charges, at the old rates, for service rendered after the adoption of the new schedule; and the court held that the plaintiff was entitled to recover only at the new rates.
At page 379 the court says that the defendant is not suing to recover charges for a tort, under sec. 8 of the I.C.A., which is almost identical with the section under which the instant case was brought. It then continues: "It is defending against an attempt to charge it with something in excess of the established rates. What it resists is not merely a discrimination, but an overcharge. Every overcharge, when exacted of one to the exclusion of others, is, indeed, a discrimination. *Page 66 Not every discrimination is an overcharge. This case does not require us to hold that a customer, sued for the established and prevailing rate, may cut the payment down by proof, without more, that some favored individual, by force of illicit rebates, has obtained services for less. Whether the remedy is then in tort for the recovery of damages, which may be more than the rebate or less, and often merely nominal" (citing cases) "is a question not now before us. . . . There is a wide difference between claimingthe benefit of a privilege conferred upon a few to the prejudiceof the many, and resisting exclusion from privilege conferredupon the many, and denied only to a few. In one case, the customer is aggrieved because someone else is paying too little. In the other he is aggrieved because he must pay too much himself. An overcharge results when the rate exacted is unreasonable. . . . I think an overcharge also results when the rate exacted of the individual is in excess of the rate in force between the company and the public, for the public includes the individual as a component of the mass. . . ." (italics mine)
Just a little further on, the court, reasoning from the analogy with railroad rate cases, says: "The only legal rates for them are those on file with the commission. Discrimination in favor of one shipper does not pull down the rate for others who have conformed to the established tariff. It gives a right of action for damages which may be nominal or substantial (Penn.R.R. Co. v. Int. Coal M. Co., supra). Payments in excess of the established tariff stand, however, on a different basis. These the shipper may recover to the extent of the excess, `not as damages, but as overcharge' (Penn. R.R. Co. v. Int. Coal M.Co., supra, at p. 202). The analogy, extended to this case, gives a right of resistance to the customer who is wronged by a departure from the norm. A tariff may be an established one for telegraph companies as for railroads (Kansas City So. Ry. v.Albers Com. Co., 223 U.S. 573, 574). Its marks may be less definite and obvious. To identify it may be harder. None the less, while it exists, *Page 67 there is a like duty to adhere to it within the limits of equality and justice. I think there is evidence justifying a finding that the plaintiff established a new tariff in September, 1915, as effectually as if it had put the changes in writing and filed them in a public office."
These are long quotations, but they seem to be justified by their importance in the present case. I am convinced that the principles there laid down are correct; and that when they are applied to the facts proved by the evidence in this case, the only reasonable conclusion is that the trial justice clearly erred in ruling, not expressly, perhaps, but at least by unavoidable implication, that at the time when the plaintiff's requests for submetering privileges were denied, the established practice of the defendant was to grant such privileges to customers in substantially the same situation as the plaintiff.
That he did so find is clear from the facts that in the part of his written decision in which he denied the defendant's motion to dismiss the case for want of jurisdiction, he said, as quoted,supra, that a rule of jurisdiction established by decisions in the United States Supreme Court "is that if the rule, regulation or practice of the utility is not attacked but the claim of the plaintiff is based on the violation of the utility's own practice or rule, then prior application to the administrative tribunal (Interstate Commerce Commission) is not required; that he next quoted the following from Baltimore Ohio R. Co. v. Brady,288 U.S. 448 at 457: "In such cases the court is required merely to decide whether the carrier has departed from its established standard"; that he then said: "In the opinion of the court this is the character of the case presented at bar, both by the pleadings and upon the evidence"; and that he rendered a decision for the plaintiff which was obviously based on its own theory of its case.
Within the territory for which the defendant was the only utility company supplying electricity, there were very many large buildings in each of which were many tenants using, *Page 68 respectively, considerable amounts of electricity produced and sold by the defendant. Many of the owners of these buildings (and I include in the word "owner" the lessee of an entire building) were in substantially the same situation as the plaintiff was in at the time when it applied to the defendant for the privilege of buying and selling electricity by what may be called a "submetering service."
The plaintiff's request was refused on the grounds that such a service was against the defendant's policy and regulations; that public policy directed its refusal; and that in most cities submetering was not allowed or was being withdrawn. The defendant now contends that these were valid grounds. The plaintiff contends that on the contrary such service was in accordance with the defendant's then established practice and that whether it was contrary to public policy had not then been determined and was not material.
As to the former point, the evidence showed clearly that among the very many owners of buildings with numerous tenants that were considerable users of electricity produced by the defendant, there were only four that at the time of the plaintiff's application, or during any part of the last preceding five years, were permitted to have such a submetering service or anything like it. The defendant contends that these four cases were all exceptional, in that each of them had a special feature or features, which justified the special treatment which was given to it, and made it not a violation of the defendant's standard practice against submetering but an exception to it.
The earliest of these cases was that of the Royal Realty Company. As to that, the only special features shown by the defendant, in comparison with the plaintiff's situation, were that in the former case the owner itself was a large user of the defendant's electricity and that it had only a few tenants, which used only comparatively small quantities of electricity, whereas the plaintiff used little electricity and its thirty tenants used large quantities. It seems to me that the two cases differ in degree only, and that the contract *Page 69 between the Royal Realty Company and the plaintiff, which was made in 1926 and was still in force when the plaintiff's first application was made, was not in accordance with what the defendant contends was its settled practice in 1931.
Two others of the four cases mentioned were those of Trades Building Inc., and Arnold Realty Company. In each of these the owner of the building had water power from which it was deriving a large, but variable and unreliable part, of the electricity needed by its tenants; and they needed more. This presented a somewhat difficult problem, which was solved in the former case by the defendant furnishing to the owner, at the quantity rate, electricity as required, for mixture and distribution with the owner's own electricity. It was solved in the latter case, where the owner's generators produced only direct current electricity and the defendant's electricity was only alternating current, by having the defendant supply to the owner alternating current, for use, in the owner's dynamo, to produce mechanical power, which in turn was used by the owner, together with its own water power, to produce direct current electricity.
The latter case was held by the trial justice to be not within the purview of the instant case. The former one he held to be inconsistent with the defendant's contention as to what was its standard of service in 1931 and later. I am inclined to think that neither one was fully consistent with that standard, but the question is a very close one and in my judgment the situations in those cases were so far difficult and exceptional that they cannot properly be given any appreciable weight in determining what was in 1931 or later the defendant's regular standard of service. In the fourth of the cases above mentioned the defendant furnished electricity to one tenant in a building, for use by it and another tenant, the two being understood by the defendant to be under joint control. This case also was excluded by the trial justice as not within the purview of the instant *Page 70 case and I cannot see that it can properly be given any weight in the determination of the above question.
On the other hand, in the fall of 1926, the defendant refused a request by Manville-Jenckes Corporation for the privilege of having a master meter and submeters in a large building which it proposed to rent to various tenants. A witness, who had had full charge of such matters for the defendant, testified, without any contradiction — and the trial justice in his decision expressed no doubt of his veracity — that in the summer of 1930 the defendant, which for some years, he said, had avoided submetering, where it seemed practical to do so, definitely adopted a firm policy against it and decided that the very few existing contracts of that general nature should be terminated as soon as practicable.
The testimony proves that no new special privilege that was understood by the defendant to be a submetering privilege was granted or permitted after that time, and that, on the contrary, a request for such a service was denied in March 1931 to General Electric Realty Corporation, which was able to supply a part of the electricity needed by its tenants, but was otherwise in substantially the same position as the plaintiff, and a similar request from the owner of the Gallagher Building was denied in October 1931 and one from Special Realty Corporation a few months later. The testimony also proved that in August 1931, in accordance with the power to do so reserved in its contract with Royal Realty Company, the defendant gave notice of the termination of that contract at the earliest date then possible.
Except for a special arrangement which it made with Special Realty Corporation, the only conduct by the defendant, after its definite adoption in the summer of 1930 of a firm policy against submetering, that may be contended to be inconsistent with that policy, was that it did not give the Royal Realty Company an earlier notice, by September 1 of that year; and that, by reason of business difficulties in the way, it did not terminate its contract with Trades *Page 71 Building, Inc. until November 1, 1933, by a notice, which had to be given at least one year before that date; and submetering by that customer was not actually stopped until the end of 1934. These instances of delay have practically no tendency to show that the defendant's settled policy and regular practice were not against submetering, though the plaintiff may have had a right to complain of such delays and to recover damages, if they caused it any.
As to Special Realty Corporation, the defendant, after having definitely refused it a submetering service, entered into an experimental "arrangement" with that building owner for a special form of service, for a few of its tenants, which is known as that of "electrically serviced space." That such a special form of service may be perfectly proper and not inconsistent with an established practice against submetering is clearly shown inSixty-Seven South Munn, Inc. v. Public UtilitiesCommissioners, 106 N.J.L. 45, 147 A. 735 (1930), affirmed, on the opinion below, in 107 N.J.L. 386, 152 A. 920 (1930),certiorari denied 283 U.S. 828, 51 S.Ct. 352, evidently the case referred to in the letter from the defendant's president to the plaintiff denying the latter's first request for submetering service.
I am inclined to agree with the conclusion of the trial justice in the instant case, that what the customer was permitted by the defendant to do, with some assistance from the defendant, after that "arrangement" was entered into, went beyond the proper limits of the doctrine of "electrically serviced space." But as soon as the defendant realized this, it put an end to the arrangement; and I cannot see that that whole affair was at all inconsistent with good faith on the part of the defendant in trying to apply consistently its settled policy and practice against submetering during the whole period for which the plaintiff is seeking to recover damages.
I find the rule to be well settled, and supported by sound principal and authority, that a few departures from an adopted and otherwise universally applied standard of *Page 72 service does not destroy that standard, or make it less binding on the public utility company or its customers. This rule is set forth in some of the language of Cardozo, J., above quoted.
As set forth in an earlier part of this opinion and for the reasons there given I am convinced that the decision of the trial justice in the instant case is based, not expressly but none the less clearly, on a finding by him that during the period for which the plaintiff is claiming damages the defendant's standard of practice was in favor of submetering of electricity and resale by its customers. In my judgment, that finding was clearly against the great weight of the evidence, which showed conclusively that during that period the standard practice of the defendant was just to the contrary, though, in my opinion, it was not quite universally and strictly applied.
As I have tried to show near the beginning of this opinion, this standard practice of the defendant utility company must control this case, unless shown to be a wrong practice. Under the doctrine of "primary jurisdiction", which I believe should be held to be in force under our public utilities statute, this practice could have been shown to be wrong in only one way,viz., by proceedings taken before the public utilities commission, subject to an appeal to this court. But the plaintiff did not then institute such proceedings.
Later the defendant filed, with the commission, regulations which incorporated this practice, thus making it public, but not, in my opinion, making it any more binding, except that probably it could not be changed thereafter except by filing the change with the commission. Then the plaintiff instituted proceedings before the commission, attacking the validity of the regulations, but soon abandoned these proceedings, because, as shown by evidence in the instant case, its counsel did not believe that they would be successful.
If the doctrine of "primary jurisdiction" does not apply as to the Rhode Island public utility commission, the plaintiff *Page 73 could in this case have attacked the reasonableness of the defendant's policy and regulations, on which, by the letter of its president, its denial of the plaintiff's first request was based, and which, he said, the defendant felt was directed by public policy. The plaintiff did not then or ever raise that question; and it is clear to me, on principle and from what appears to be an unbroken chain of authority, that the defendant was right, and that the plaintiff is now recovering damages because the defendant refused, on the ground of public policy, to grant to it privileges, the granting of which would have been in violation of public policy.
For cases involving submetering see Sixty-Seven South Munn,Inc. v. Public Utility Commissioners, supra; Lewis v. PotomacElectric Power Co., 64 Fed. (2d) 701 (1933); Florida Power Light Co. v. State ex rel. Malcolm, 107 Fla. 317, 144 So. 657 (1932); Karrick v. Potomac Electric Power Co., P.U.R. 1932 C, 40. A question which seems to me to depend upon exactly the same principles has arisen with regard to telephone service and, so far as I have been able to ascertain, has uniformly been decided in the same way as in the above cases, viz., that it is wrong for any telephone company, subject, as is the defendant, to regulation by an administrative authority under a public utilities statute, to furnish telephone service wholesale to a customer with permission to retail that service to others, without regulation by such authority and for the benefit of such customer. Hotel Sherman Co. v. Chicago Telephone Co., P.U.R. 1915, F, 776 (Ill.); Re Hotel Tel. Service Rates, P.U.R. 1919 A 190 (Mass.); Connolly v. Burleson, P.U.R. 1920 C, 243 (N.Y.); Re Hotel Marion Co., P.U.R. 1920, D, 466 (Ark.); HotelPfister v. Wisconsin Telephone Co., 203 Wis. 20, 233 N.W. 617 (1930).
In the last of these cases the court said: "If such practice were permitted, it would open the door to discrimination, and thereby afford a means of evading one of the most important provisions of the statute and render it impotent to accomplish the purpose of its enactment." This is precisely *Page 74 the ground upon which a submetering service by an electric company, which is under regulation by a commission, has always been held, and should be held, to be illegal; and exceptions should be made only in cases adjudged by the commission to be so exceptional that this ground does not apply.
For the reasons above set forth, it is clear to my mind that the plaintiff in the instant case had no right whatever to recover any damages on the ground that a submetering privilege was wrongfully refused to it by the defendant; and that the only right it could have would be to recover any damages caused to it by wrongful discrimination against it by the defendant, in permitting submetering by any of its other customers in like situation with the plaintiff. But, granting that such wrongful discrimination was proved, the plaintiff failed to prove that it suffered any damages therefrom.
The plaintiff, rather half-heartedly it seems to me, contends that even for such discrimination, consisting solely of the wrongful granting of favors to other customers, which were not granted to it, it has the right to recover profits which it would have made if similar wrongful favors had been granted to it. But that contention is in my judgment against sound principle and against the decisions in all or almost all the cases based on statutes like the I.C.A. and our own.
Under the I.C.A. the law is perfectly well settled against such a contention, both as to discriminations in rates and as to discriminations in facilities or service; and the Rhode Island statute on public utilities is in all relevant respects the same as that statute, except for immaterial differences in phraseology. The leading case is Pennsylvania R. Co. v.International Coal Mining Co., 230 U.S. 184, cited in the majority opinion in the instant case. There Pitney, J. alone dissented, and his dissent was based partly on rate cases at common law, where there were no standards below which rates were unreasonably low, and the only question was *Page 75 whether the rate that a plaintiff had to pay was unreasonably high.
But his dissent seems to me to have been based mainly on certain English railroad rate cases, which were decided under the "equality clause" of certain statutes under which, likewise, there were apparently no standards below which rates must not fall. The reasoning of the courts in those cases was that the very fact that another shipper was charged for a certain transportation service a certain rate, which was lower than the plaintiff was charged by the same railroad for a like service, was evidence enough that the former rate was the reasonable rate and that the plaintiff's rate was therefore too high by the amount of the difference between these rates, which amount the plaintiff was therefore entitled to recover from the railroad as an overcharge, in an action of assumpsit for money paid. Those cases were not in tort, as the instant case is, and must be, under our statute.
No such reasoning can apply in cases under public utility statutes, where standards of service, as well as of rates, are all important, and administrative tribunals are provided to determine, if questions arise, what are proper standards, and to do so in decisions which will be binding on all persons in any way concerned. In cases under such statutes, even omitting the federal cases, the weight of authority, as well as sound principle, is strongly in favor of the rule that a plaintiff, in an action for damages against a public utility company, because a certain kind of service was granted to some other customer or customers in like situation with himself and denied to him, cannot recover for the added profits that he would have made if he had received such service, unless he can prove that he was entitled to such service as standard service of the company, and that the fact that some such other customers were getting such service by no means proves that it was standard service.
The plaintiff here cites only four authorities as being against this rule. The earliest is Sullivan v. Minneapolisc. *Page 76 Ry. Co., 121 Minn. 488, 142 N.W. 3 (1913). This was brought as a common law action to recover the excess of the amount of freight charges which the plaintiff had been obliged to pay to the defendant above the amount which it had charged another customer for similar shipments between the same points, the carriage being wholly intrastate. There was a regulatory statute, but the court found that it contained no provision for the recovery of damages by a shipper discriminated against and left that to be remedied at common law. The court applied what it said was the common law rule, that the measure of recovery was the difference in the rates, and said that any other conclusion would be inconsistent with the construction of sec. 8 of the I.C.A. by the decision of the United States Circuit Court of Appeals in theInternational Coal Mining Company case, which was very soon afterwards reversed by the Supreme Court, supra.
The next case cited by the present plaintiff is Seaman v.Minneapolis c. Ry. Co., 127 Minn. 180, 149 N.W. 134 (1914), with which was heard and decided a later phase of the aboveSullivan case, the two cases involving the same point. The court adhered to the above rulings as to damages, in spite of the intervening decision of the United States Supreme Court in theInternational Coal Mining Company case. It admitted that in the former opinion in the Sullivan case, it had overlooked the fact that a remedy by a shipper discriminated against was expressly provided in the state statute, but said that it also contained a provision saving common law remedies.
The next case cited is Mitchell Coal Co. v. PennsylvaniaR. Co., 241 Pa. 536, 88 A. 743 (1913). There the headnotes say that the fact that the plaintiff had notice that rebates were being given to certain competitors and denied to it did not preclude it from recovering damages "measured by the rebates allowed its competitors"; but I can find in the opinion no discussion of the question of the proper measure of damages in such cases. There is simply a statement that the effect of the rebate was to cause damage to the *Page 77 plaintiff to the extent of the rebate. Whether this is meant as a statement of law or of fact does not appear.
The latest case cited is National Radiator Co. v.Pennsylvania R. Co., 6 N.J. Misc. 778, 143 A. 85 (1928). This was merely a decision in a circuit court of New Jersey, which held, in a case brought for violation of an equality clause in a state statute, that the measure of damages was the difference in rates. At page 88, the court, evidently referring to I.C. A's sec. 8, which is so closely parallel to the section under which the instant case is brought, said: "Unlike the acts of Congress, which declare the measure of damages recoverable, our statutes merely prohibit the giving of preferences. The recovery must be in accord with the common law."
The court admitted a conflict as to the measure of damages, actual loss being the measure according to one line of decisions. It would not follow the federal rule because, it said, that rule was based "upon the peculiar terms of the act of Congress." It cited three cases in support of its decision. The first was a case arising under a Colorado statute, the relevant provisions of which do not appear, and the question is not discussed. Another of these cases was the Sullivan case, above discussed. The third was Cook v. Chicago c. Ry. Co., 81 Ia. 551, 46 N.W. 1080, which was an action at common law and based on a finding that the lower net rate charged another shipper in a like situation was the reasonable rate and that the rate charged the plaintiff was unreasonable to the extent of the difference between the two rates. All these cases seem to me of no real weight in favor of the plaintiff's contention in this case.
On the other side of the question there are many cases in the state courts, of which the following are fair examples, together with the cases cited therein. Boerth v. Detroit City Gas Co.,152 Mich. 654, 116 N.W. 628, 18 L.R.A. (N.S.) 1197 (1908); LillyCo. v. Northern Pacific R. Co., 64 Wn. 589, 117 P. 401 (1911); Frank A. Graham Ice Co. v. Chicago c. Ry. Co.,153 Wis. 145, 140 N.W. 1097 (1913); *Page 78 Toledo c. Ry. Co. v. Wren, 78 Ohio St. 137, 84 N.E. 785 (1928).
According to the authorities and on sound principle, I am convinced that the plaintiff in the instant case cannot rightly recover by reason of any submetering privileges which the defendant wrongfully permitted any of its other customers to enjoy, unless the plaintiff can prove that it suffered actual damage, in competition with such other customers, by reason of such privileges permitted to them; and that, as it did not prove any such damage, it failed to prove any right of action on that secondary theory of its case, just as it failed to prove any right of action on its primary theory of its case.
In my opinion the result of the decision of the superior court, as affirmed by this court, is that the defendant is being obliged to pay to the plaintiff very heavy damages, not at all because it had wrongly permitted a very few of its other customers to continue too long to enjoy submetering privileges, which were contrary to public policy, but solely because it rightly refused the plaintiff's demands that it go farther on the wrong course than it had ever gone before and grant a new and greater submetering privilege, after it had been rightly advised that submetering was contrary to public policy and had definitely adopted a firm policy against such privileges. I cannot concur in such a result.
In my opinion the defendant's exception to the decision of the superior court for the plaintiff should be sustained; the decision should be reversed and an opportunity should be given to the plaintiff to show cause why the case should not be remitted to the superior court with a direction to enter a judgment for the defendant.