(dissenting).
On October 22, 1942, this court rendered its judgment and handed down its opinion affirming the judgment of the trial court in this cause. Upon consideration of appellant’s motion for rehearing it has now been decided by the majority to set aside the judgment of affirmance and here render judgment for appellant. I am constrained to adhere to the original judgment of af-firmance and to dissent from the substituted judgment of rendition because I believe such is clearly required by the direct authority of: Texas Power & Light Co. v. Hilltop Baking Co., Tex.Civ.App., 78 S.W.2d 718, error dismissed; Raynolds Holding Co. v. El Paso Electric Co., Tex.Civ.App., 70 S.W.2d 624; El Paso Electric Co. v. Raynolds Holding Co., 128 Tex. 495, 100 S.W.2d 97, 108 A.L.R. 744; Texas Power & Light Co. v. Doering Hotel Co., Tex.Civ.App., 147 S.W.2d 897; Id., 139 Tex. 351, 162 S.W.2d 938.
In my opinion, the unlawful discrimination raised by the pleadings, tendered by the evidence and established by the verdict and judgment of the trial court, necessarily consisted of undercharges or overcharges. Either the consumers of electric current who were billed on the F-l rate for'both *289power and light were undercharged, or ap-pellees were overcharged. Before it can be said that the consumers who were billed on the F-l rate for both power and light were undercharged, it must appear that the F-l rate as promulgated by the City of Waco was not available to such consumers. Under the written and published provisions of the F-l rate in Waco from January 1, 1918, through 1938, such rate was clearly available to consumers of current used for power purposes. While the written and published provisions showing the availability of such rate did not specifically include current used by such consumers foi lighting purposes also, yet I find nothing in these provisions which directly or indirectly excluded that portion of the current used for lighting purposes from that portion used for power purposes. I cannot say as a matter of law from the voluminous record before us that any consumer who was billed on the F-l rate for both power and light from 1918 through 1938 was undercharged. On the contrary, it is clear to me that appellant could not be permitted on his record to recover as for undercharges against any consumer so billed. Having voluntarily extended the application of the F-l rate by its custom and practice so as to cover current used for both power and light, it should not now be heard to insist that under the true intent and meaning of the written and published provisions with respect to such rate, the same was available only for that portion of the current used for power purposes.
Since the' F-l rate was thus lawfully available to some consumers of current used for both power and lighting purposes, it was also lawfully available to all consumers of current used for both power and lighting purposes who were similarly situated with reference to the service conditions and cost factors determining the application and availability of said rate. If the F-l rate was lawfully available to ap-pellees for the current used by them for both power and lighting purposes, then the unlawful discrimination against them necessarily consisted of overcharges, regardless of any consideration of competition or of the reasonableness or unreasonableness in fact of the charges so made. And if appellees were entitled to be billed on the F-l rate for all of the current used by them for both power and light, but were actually billed on the F-l rate for power and on a higher rate for light, then under the holding in the Hilltop Baking Company and Doering Hotel Company cases, supra, a correct measure of their damages is that which was applied by the trial court.