56 Ind. App. 42 | Ind. Ct. App. | 1914
Appellee as the receiver of the United States Cement Company, brought this action against appellant and the Southern Indiana Railway Company to recover excess freight charges paid to them as common carriers on certain shipments of coal made to said cement company. After the motion for a new trial had been overruled, it was shown that the appellee had personally succeeded to all the rights of the company held by him as receiver, and by agreement of the parties, he personally was substituted as plaintiff and judgment was rendered in his favor, and against appellant only, for $1,666.61. The complaint as originally filed consisted of two paragraphs. A demurrer for want of facts was sustained to the first and overruled as to the second.
Under the heading, “Errors relied upon for a reversal”, appellant has stated a number of propositions that may be grounds for a new trial but not for independent assignment of error. The errors relied on that may be considered are the overruling of appellant’s demurrer to the second paragraph of the complaint and the overruling of the motion for a new trial.
The principal ground upon which a reversal is claimed is that the facts do not snow that the excess rate was the the result of the joint and concurring acts 'of the two railroad companies over the lines of which the coal was shipped; that the facts do not show that appellant participated in making the rate; that the Southern Indiana Eailroad Company was the initial carrier and appellant simply received and forwarded the cars according to the charges made by that company; that the freight was voluntarily paid by appellant; that the shipping companies were not joint tortfeasors and no liability is shown against appellant. The facts essential to a decision of the questions involved are in substance as follows: Por many years prior to this controversy, appellant and the Southern Indiana Eailroad Company hauled coal over their lines from the Linton district in Indiana to the plant of the cement company near the city of Bedford; that the cars were received by the Southern Indiana Eailway Company and shipped over its lines to Bedford, from which place they were taken by appellant over its lines to said plant, a distance of about two miles. Prior to August 12, 1907, the freight charge for such shipments was fifty cents per ton which was mutually prorated by said railway companies. On that date, the railway com-
The facts fully warrant the judgment rendered by the trial court and no error was committed in overruling the motion for a new trial. Judgment affirmed.
Shea, P. J., not participating.