51 So. 770 | Ala. | 1910
— The case made on appeal is stated by appellant as follows: “The complaint as originally filed contained four counts, the last two of which were the common counts, and during the progress of the cause were stricken out by the plaintiff. Demurrers were sustained to the first and second counts, and plaintiff amended by filing additional counts numbered 5, 6, 7, 8, and 9, to which demurrers were likewise sustained. Plaintiff again amended its complaint by filing counts 10, 11, 12, and 13. Demurrers were sustained to counts 10 and 11, and overruled to counts 12 and 13. To counts 12 and 13 defendant pleaded the general issue and eight special pleas. After demurrers had been overruled to plea 3 and sustained to the balance of the special pleas, defendant filed special pleas, A, B, C, D, and E. Demurrers were overruled to pleas A, B, C and E, and sustained to plea D. The action of the court in sustaining demurrers to the first, second, fifth, sixth, seventh, eighth, ninth, tenth, and eleventh counts of the complaint, and in overruling demurrers to the special pleas 3, A, B. C, and E, constitute the only assignments of error.” While a contract is made the basis of the ac
It is true, as has been well said by this court in an early case (M. & M. Ry. Co. v. Steiner, McGhee & Co., 6 Ala. 595), that common carriers, such as railroads and shippers, are in no sense on equal terms; that railroads have so expedited and cheapened transportation as to practically drive from the domain all competitors
At common law common carriers were thus bound to accept and carry all who conformed to reasonable rules, and could lawfully charge or receive only a reasonable compensation therefor; but at .common law the carriers Avere not required to treat all persons or shippers alike —that is, to carry all for the same price. They could carry their friends or favorites at lower rates than they charged the public, provided, however, the rates charged the public were reasonable. The fact that the carriers charge some a less price than that charged the public is some evidence that the greater price is unreasonable or excessive, but it is not conclusive, so that the difference between the special and the general charges
Discriminations and rebates by railroad common carriers have long been prohibited in this state — certainly since April 19, 1873. — Pamph. Acts 1872-73, p. 62. This act regulated the charges for transportation of freight upon railroads within this state, and among other things prohibited discriminations, and provided that the railroad company, for the transportation of local freight, might demand and receive not exceeding 50 per cent, more than the rate charged for transportation of the same freight over the wdiole line of its road. Stone; J., in construing this statute in the cases of State ex rel. Harrell v. Mobile & M. Ry. Co., 59 Ala. 321, and M. & M. Ry. Co. v. Sterner, et al., 61 Ala. 559, upheld the enactment, but pointed out hardships in its provisions, and recommended changes by the Legislature, remarking that the statute might be oppressive on the railroads, but that the remedy was. not wdth the court
The statutes of this state on this subject have often been changed, but they have ever since remained so that discriminations and rebates in freight rates have been prohibited, except in some specified cases mentioned in the statutes. Sections 3462 and 5551 of the Code of 1896, and section 245 of the Constitution, were in force in this state at the times of the making, and the breach of the contract complained of in this case.
These provisions are as follows.:
“3462 (1161). Rates on Freight to be Posted at Depot; Discrimination Unlawful. — Every person or corporation, owming or operating a railroad in this state, must publish, by posting at all the freight depots along the line of such railroad, the tariffs of rates for the*287 transportation of freight thereon, showing the rates for each class, and including general and special rates; and from such tariffs no reduction shall be made in favor of any person which is not also made in favor of all other persons or corporations by change in such published rates. Special rates, if so published, may be given to any person or corporation to aid in the development of any industrial enterprise in this state.”
“5551 (4147). Reduction of Regular Rates by Railroads. — Any person or corporation operating a railroad, who makes, and any person who knowingly accepts, a lower transportation rate for person or freight than the published tariff, must, on conviction, be fined not less than ten, nor more than five hundred dollars.”
“245 (Const. 1901). No railroad company shall give or pay any rebate, or a bonus in the nature thereof, directly or indirectly, or do any act to mislead or deceive the public as to the real rates charged or received for freights or passage;' and any such payments shall be illegal and void, and these prohibitions shall be enforced by suitable penalties.”
In order for plaintiff to recover in an action like this, it must show that it was compelled to pay unreasonable or excessive charges for the shipment of its freight. The fact that it paid more than it had contracted to pay is not sufficient. It must appear that it was compelled to pay more than the railroad company was authorized to charge, or collect from it, and it must appear that the excessive amount was paid involuntarily .or as a condition precedent to getting its freight or having it shipped. Paying such amount after the freight was shipped and delivered merely because it was demanded by the shipper is not sufficient. It was necessary for the plaintiff in this case to show that the contract of shipment relied upon as the basis
Construing the averments most strongly against the pleader, it does not appear that the rates fixed by the first contract were those authorized by the statute, or that they were not in violation of the statutory or constitutional provisions referred to, or that the rates charged or collected were in excess of those authorized by law. Nor does it certainly appear that the excessive charges were paid involuntarily, or under such duress or necessity as would authorize the shipper to recover the charges so paid. None of the counts show that plaintiff and defendant had any rights under the law to enter into any special contract different from that accorded other shippers, nor does it show that the charges or rates collected were different from, or in excess of, those charged other shippers. This is clearly necessary to entitle plaintiff to recover in this action. A mere contractual right alone is not sufficient to support the action. There must be shown a breach of duty, as well as of contract, to support the action. As was said by Stone, J., quoting Tindall, C. J.: “The payments must be made in order to induce the railroad company to do that which they were bound to do without them, and for tbe refusal to do
Pleas 3 and A set up the fact that plaintiff had breached the contract relied upon as the basis of its claim, and had refused to be bound by its terms, and therefore could not and should not hold the defendant to it. These facts, if true (and on demurrer they must be so taken), constituted a good defense to each of the counts to which they were interposed. A party will not be allowed, and should not be allowed, to both affirm and disaffirm the same contract at the same time. One who elects to avoid the burdens of a contract will not be allowed to reap the benefits thereof. These pleas were therefore sufficient'. — 16 Cyc. 785-791; Levy v. Bloch, 88 Ala. 290, 6 South. 833.
Pleas B, C, and E each set up, in varying language, the same defense — that is, that the contract relied upon as the basis of the action, and declared on, was invalid under the statutes and laws of this state, above referred to — that to enforce it would be to violate the law, in
Justices SIMPSON, ANDERSON, McOLELLAN, and EVANS are of tbe opinion that count 2 stated a good cause of action, and ivas not subject to tbe demurrer thereto.
Chief Justice DOWDELL and Justice SAYRE concur in tbe views of tbe writer that count 2 ivas bad, as well as tbe other counts as to which demurrers were sustained.
All tbe justices concur in bolding that, if it ivas error to sustain a demurrer to count 2, this court cannot say from tbe record that it ivas error without injury.
It therefore follows that the judgment must be revers- and tbe cause remanded.
Reversed and remanded.