87 S.W.2d 821 | Tex. App. | 1935
Saul's Stores, Inc., appellant, brought suit in the district court of Wichita county, against appellee, Texas Electric Service Company, alleging that appellee, a public utility corporation serving appellant and the public with electric current and power wrongfully and unlawfully discriminated against appellant in the rates and amounts charged for the electric current used, in that it charged and collected from other firms, persons, and corporations, conducting businesses similar to appellant's business, and similarly situated as is appellant's business with respect to the amount of current used and necessary for use, a lesser rate and smaller sums of money for such similar service.
By bills of particulars attached to appellant's pleadings and made a part thereof, appellant set forth the two different kinds of schedules and services offered, and the different charges therefor, the amounts charged appellant, and those it alleges should have been charged, and the differences, and has prayed for a recovery of the alleged differences, as and for overcharges demanded by and paid to appellee.
Appellee addressed a large number of special exceptions to the petition, attacking the allegations and the language used, asserting discrimination under article 1438, R.C.S., and attacking the measure of damages set up in the petition. *822
The trial court sustained these special exceptions. Appellant declined to amend, and judgment was rendered dismissing the suit. The cause is brought before us on a writ of error, but we have referred to the parties as appellant and appellee for convenience.
This cause and the pleadings offered by the plaintiff below, appellant here, seem to be on all fours with the suit instituted by Hilltop Baking Company against Texas Power Light Company, the judgment in which cause was appealed from by the defendant, and the judgment affirmed by the Court of Civil Appeals for the Tenth Supreme Judicial District of Texas. Texas P. L. Co. v. Hilltop Baking Co.,
The petition in this cause is quite lengthy. We do not believe that it is necessary for the petitioner to allege the minute details upon which it relies to show a similarity between its business situation and its requirements as to the amount of current used and that of other institutions, which it claims have been charged rates and amounts less than those charged it, thus bringing about the alleged discrimination. We believe these details are matters of proof.
We have therefore concluded that the trial court erred in sustaining the special exceptions urged by appellee to the plaintiffs petition and in dismissing its suit.
The judgment of the trial court is reversed, and the cause remanded.
