United Gas Corp. v. Shepherd Laundries Co.

On Motion for Rehearing.

Appellant has presented an extended motion for rehearing, and both sides have accommodatingly furnished the court with full written arguments and citations of authorities for consideration with it.

So aided, much time and labor has been expended in the re-examination of the record and the reconsideration especially of the authorities upon which the original opinion was based; as a result, with great consideration for appellant’s opposing view, which extends to most, if not all, the holdings then made by it, this court is constrained to adhere to them all, both as to findings of fact and conclusions of law.

Appellant reiterates its claim for conflicts in the Supreme Court’s opinions and official action in the Doering, Hilltop, Ford, and Kousal cases, particularly on the leading question of the measure of damages in a case for discrimination, under our Article 1438; vigorously contending that of the five questions of law it has presented here not one of them was raised in the records before the Supreme Court in either the Doering or Hilltop cases, and asserting that, in consequence, neither the Supreme Court’s action in so affirming the one and dismissing the other is authority for this court’s judgment in this cause; further, that the Hilltop case holding on the question of measure of damages is not only unsupported by any cited authority therein, but is also in direct conflict with the Supreme Court’s holdings in the Ford, Kousal, and Doering cases.

In this connection, it invites this court to go behind the Supreme Court’s reported judgments, and inquisitorially investigate the records in those cases for itself, to determine whether or not its contentions were presented, and thereupon to decide what “questions of law” the Supreme Court’s jurisdiction extended to. This court is unable to accept the invitation, concluding rather, under the present state of amended R.S. Article 1728, Vernon’s Ann.Civ.St. art. 1728, and such cases as Moore v. Davis, Tex.Civ.App., 27 S.W.2d 153, Commercial Standard Ins. Co. v. Robinson, Tex.Com.App., 151 S.W.2d 795, and Humble Oil & Refining Co. v. State, *935Tex.Civ.App., 158 S.W.2d 336, that this court is bound by the decisions of the Supreme Court as rendered and that such court’s jurisdiction, “when once the writ of error has been granted * * * extends 'to all questions of law arising’ in the case” [27 S.W.2d 157], of which the measure of damages therein involved must have been one.

If, as the Supreme Court, at least by plain implication, holds, overcharge recoveries were properly allowed under the provisions of Article 1438 on the facts in the Hilltop Bakery and the Doering Hotel causes — which status was not attained in the subsequent instances of Ford’s Laundry and the Kousals’ Market, because, likewise on the facts, Ford failed to show his laundry to have been served under like and similar circumstances with the favored canning plants, while the Kousals, although held to have been discriminated against, failed to prove they had paid any more than the officially binding rate established by the Waco City Ordinance — then, by parity of reasoning, the same sort of recovery allowed this appellee under facts not in legal effect in anywise different, should not be stricken down.

Moreover, this court perceives no such conflicts, being of opinion that there exists a line of continuity of decision down through that group of holdings, when they are all correctly construed, and each is assigned to its proper class.

As recited in the former opinion, all the questions of fact here involved were resolved in appellee’s favor, and appellant has made no proper attack upon them; it was shown and found that all the lower-rate payers in this instance were served for less, in like and similar situations to that of the appellee, and that all the “material-billing-factors” as between them and it were substantially the same.

In such a situation, where there has been no authoritative rate required by law to be enforced, nor even an established or published one, it seems to be the well-settled rule that the lowest rate charged any of such customers becomes the lawful rate for them all. Pennsylvania R. Co. v. International Coal Mining Co., 230 U.S. 184, 33 S.Ct. 893, 57 L.Ed. 1446, 1453, Ann.Cas.1915A, 315; Postal Tel. Co. v. Associated Press, 228 N.Y. 370, 127 N.E. 256; Texas P. & L. Co. v. Hilltop Baking Co., Tex.Civ.App., 78 S.W.2d 718; Texas P. & L. Co. v. Doering Hotel Co., Tex.Civ.App., 147 S.W.2d 897; El Paso Electric Co. v. Raynolds Holding Co., 128 Tex. 495, 100 S.W.2d 97, 108 A.L.R. 744; Kousal et al. v. Texas Power & Light Co., Tex.Sup., 179 S.W.2d 283; Ford v. Rio Grande Valley Gas Co., 141 Tex. 525, 174 S.W.2d 479.

Pursuant to these conclusions, the motion will be overruled.

Motion for rehearing overruled.

Motion refused.