166 Mo. App. 372 | Mo. Ct. App. | 1912
— This is a suit for damages alleged to have accrued on account of defendant’s breach of its obligation to transport plaintiffs’ goods within a reasonable time and to recover an excessive freight charge wrongfully exacted. Plaintiffs recovered and defendant prosecutes the appeal.
The suit originated before a justice of the peace and found its way by appeal into the circuit court where it was tried without a jury. The complaint sets forth, and the evidence tends to prove, that plaintiffs, copartners, owned and operated a business at Wicldiffe, Kentucky, where they retailed wagons, buggies, etc. They had recently purchased a second-hand stock of wagons and buggies and had been closing them out at Paragould, Arkansas, but desired to ship the remnant of such stock from that point to their
In the complaint plaintiffs lay a claim of eighty dollars for damages on account of delay in the shipment, and by its judgment the court awarded them the full amount claimed on that score. It is entirely, clear that such consequential damages may not be recovered on the proof made, and the court erred in giving judgment for plaintiffs thereon.
The other item of damages sued for relates to an alleged overcharge of twenty-two dollars for the freight, and the court gave judgment for plaintiffs for the full amount claimed touching this matter as well. It appears that defendant contracted with plaintiffs to transport the car of wagons and buggies from Paragould, Arkansas, to Wickliffe, Kentucky, via. Cairo, Illinois, over its own line and the Illinois Central at thirty-five cents per hundredweight. At such rate, the total freight justly payable at Wickliffe, Kentucky, was seventy dollars. When the goods arrived at destination, the Illinois Central Railroad Company refused to deliver the same in accordance with the contract and, instead, exacted a payment of ninety-two dollars freight thereon for the through shipment. It appears defendant’s agent made a mistake in computing the freight rate and entering into the contract as above mentioned, for no through rate whatever was provided between the point of shipment and destination. The shipment is interstate in character and, of course, falls within the purview of the Interstate Commerce Law. The case concedes' that the rate shown in the tariff published and filed with the Interstate Commerce Commission on such shipment was thirty cents per hundredweight from Paragould, Arkansas to
But tbe agent of tbe Illinois Central Railroad Company at Wickliffe, Kentucky, exacted from pjaintiffs ninety-two dollars as a condition to surrendering tbe goods. Prom tbis it appears tbat plaintiffs were required to pay twenty-two dollars in excess of tbe contract rate and eight dollars and eighty cents in excess of tbe rate provided by law. Tbe court awarded plaintiffs a recovery of twenty-two dollars on tbis item as if tbe contract touching tbe same were a valid one and such amount was- unlawfully exacted. Obviously tbis was error under tbe rule of decision above referred to, but it is not to be doubted tbat plaintiffs are entitled to recover eight dollars and eighty cents, tbe amount collected in-'excess of tbe tariff rate duly provided. But defendant argues tbat it may not be required to repay even tbis sum to plaintiffs for tbe reason it was unjustly exacted by tbe Illinois Central Railroad Company and retained by tbat company. It is said tbis defendant was wholly unconcerned with such unlawful exaction and has received none of its benefits. We are not impressed with tbis argument in tbe least, for whether tbe Illinois Central retained the excess charged or not, it acted in part as tbe agent of tbis defendant in exacting its payment from tbe plaintiffs. Tbe Illinois Central as connecting carrier bad not advanced tbe accrued freight charges to defendant company, tbe initial carrier, at tbe time of tbis collection and, therefore, was not asserting tbe right of its lien alone when demand for tbe same was made. On tbe contrary, tbe Illinois Central collected tbe ninety-two dollars at Wickliffe, Kentucky, in one sum to cover tbe freight charge for both defendant, tbe initial carrier, and its own account and, as to the entire sum, asserted tbe lien of both carriers. In such circumstances, tbe Illinois Central Railroad Company exercised an agency for defendant, tbe initial carrier,
The judgment should, therefore, be reversed and the cause remanded with directions to the circuit court to enter judgment for plaintiffs against defendant for the amount of eight dollars and eighty cents, together with six per cent interest thereon from the date plaintiffs were coerced into pay the same. It is so ordered.