143 Ky. 201 | Ky. Ct. App. | 1911
OpiNion of the Court by
Reversing.
A. B. Morton filed an equitable action in the Greenup Circuit Court against the Chesapeake & Ohio Railway Company in which he sought to recover of said company $406.83, alleged to he overcharges on shipments of freight from points in Kentucky to certain designated stations on the fine of the Grand Rapids and Indiana Railway. It is charged in the petition that the Railway Company, in violation of its contract and right, charged two cents per hundred pounds for the transferring of its case from its tracks to those of the connecting carrier at Cincinnati, and it is on this particular charge that the plaintiff seeks in its suit to recover. The railway company defends upon the ground that it made no overcharge whatever, hut it simply charged the regular tariff charges as provided for in the schedules published and posted by it and its connecting carriers.
The trial judge, upon proof, was of opinion that it was a charge in addition to the regular tariff rate, and entered judgment for the plaintiff accordingly. From that judgment the railway company prosecutes this appeal, and seeks a reversal upon the ground that the evidence does not support the finding of the chancellor.
The bridge company charged and received two cents per hundred pounds for transferring the freight, and if this charge was added to the schedule tariff and paid by plaintiff, the judgment of the lower court should be upheld. But, though charged by the bridge company, if it was paid by the connecting carrier and deducted from its schedule tariff rate for carrying this freight, then no ground of complaint is afforded plaintiff, and the judgment should be reversed. The railroads were bound to charge the schedule tariff rate for these shipments. They could charge neither more nor less. C. & O. Ry. Co. v. Maysville Brick Co., 116 S. W., 1183; Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S., 425. What were these rates? It is admitted that during a part of the time covered by these shipments the rate to Cincinnati, Ohio, was 8 l-2c per tie, and that thirteen cars were shipped under this rate; that the rate was thereafter changed and a charge of 5 l-2c per hundred pounds was made, and that twenty-one cars were shipped under this rate. There is no contrariety in the testimony as to
An examination of the expense bills of the cars that were shipped to Richmond, Indiana, shows that the freight charge was divided, as follows: 4 cents, 2 cents and 51-2 cents, making a total of 111-2 cents. At that time the tariff rate on the Obesa peake & Ohio was 5 l-2e and on the Panhandle 6c, making the joint tariff rate 11 l-2c, the exact amount charged. It is explained that the 6c for the Panhandle was divided into 4c and 2c, the Panhandle retaining the 4c and paying the 2c to the bridge company, in accordance with the traffic agreement testified to as then existing between the railroad companies. The expense bills covering shipments to Grand Rapids and Muskegon show that the items of expense are charged therein, as follows: 7 8-10e. 2 2-10c and 2c, thus making 12c, the tariff rate from Cincinnati to these points-. To this is added the tariff rate on the Chesapeake & Ohio, which part of the
Judgment reversed and cause remanded, with instructions to enter a judgment for the defendant.