257 Pa. 54 | Pa. | 1916
Opinion by
Plaintiff, a retail coal dealer, sued to recover damages from defendant for unlawful discrimination in freight rates for coal hauled between the anthracite coál regions and the City of Philadelphia. The action was brought February 1,1906, and the damages claimed were for a period of alleged discrimination between June 1, 1891, and July 23,1901. The original statement claimed damages to the extent of $100,000, which plaintiff alleged he suffered by reason of the fact that defendant “did charge, demand and receive from plaintiff for the transportation of said coal a sum in excess of that charged and received by defendant from .divers other persons upon like conditions, under similar circumstances and during the same periods of time, and allowed such other persons, firms and corporations concessions in rates and drawbacks which were not allowed to plaintiff, all in violation of the Constitution of Pennsylvania
The verdict, which is amply supported by the evidence, establishes that, during the time covered by the statement of claim, the firm of Downing Brothers, coal dealers in Philadelphia and competitors of plaintiff, paid the regular freight charges on coal shipped to them at the same rate as plaintiff paid for coal, under identical conditions and circumstances, and subsequently received rebates of fifty, twenty-five and fifteen cents a ton from defendant, and also received, in the years 1897 to 1900 inclusive, the sum of $9,500 a year to pay rent for their coal yard. Defendant contends the coal sold plaintiff by Boyd & Company was sold at a price delivered in Philadelphia, and that Boyd & Company paid the freight, hence plaintiff was not injured by the alleged rebates; there being no contractual relation between defendant and plaintiff, the right of action, if any, was against Boyd & Company. This view was sustained by the court below on demurrer to plaintiff’s original statement of claim. In his amended statement plaintiff averred payment of the freight by him to defendant. It appears, from the testimony of Downing and plaintiff’s clerk, Smedley, that both plaintiff and Downing Broth
George H. Ross, a witness for defendant, testified that Boyd & Company were sales agents in the Philadelphia district for the Susquehanna Coal Company, a corporation owned or controlled by defendant. W. C. Downing, of the firm of Downing Brot’hers, to whom the rebates complained of had been paid, testified Boyd & Company were agents of defendant for collection of freight on coal, and that he paid freight to them as such. This witness also testified to having seen an agreement of their employment as agents in 1897 or 1898, that he read it throughout, and it contained provisions for collection of freight from consignees by Boyd & Company, for which •• service the latter were to receive a certain commission. At the trial plaintiff called for the production of this agreement, and in reply to the call defendant’s counsel stated they had no sq.ch agreement, and officials of defendant, called for cross-examination, denied all knowledge of the existence of such contract. Other witnesses also testified Boyd ¿¡^Company were agents for defendant company; and it appears freight on coal purchased by others than Boyd & 'Company was always paid direct to defendant, while on purchases from Boyd & Company it was paid to them: Although the testimony of Downing was not definite as to the period of time covered by the contract of agency which he claims to have seen, and he was not clear whether the agreement was a new one or the renewal of a former one, his testimony, with the other evidence in the case, was sufficient to submit to the jury on the question whether or not Boyd &
The court below in its opinion refusing a new trial limited the damages to a period of six years preceding the beginning of the suit, thus holding plaintiff had not met the burden imposed upon him of proving facts sufficient to take the case out of the statute of limitations: Campbell’s Admr. v. Boggs, 48 Pa. 524. The evidence relied upon by plaintiff for this purpose was, inter alia, an interview by himself with William H. Joyce, defendant’s general freight agent, on November 1, 1893, when the following conversation took place:
“A. — I called on Mr. Joyce and stated to him that there was somebody underselling us in coal, and we could not hold our trade, and I thought they must have a lower rate of freight or a rebate, and he assured me we were all paying the same rate of freight, and that no rebates were being paid to anyone. I told him I could not understand it because they were offering coal from twenty-five to fifty cents a ton lower than we were, on the same coal, shipped by the same people, so he says ‘I cannot do anything for you Mr. Hall’ and he never did.
“Q. — You told him where your coal was coming from?
“A. — Yes, sir.
“Q. — From where, what did you tell him ?
“A. — Pennsylvania Railroad Company coal, Lehigh and Wyoming regions.
“Q. — What did you tell him, did you tell him you were paying Boyd the freight?
“A. — Told him we paid Mr. Boyd for his coal and freight.
“Q. — And he said nobody was getting any better rates than you?
“A. — Yes, sir.
“Q. — Did you believe what Mr. Joyce told you?
“A. — I certainly did.”
The court below held this conversation insufficient to
The statement of Joyce, that no rebates were being given, was calculated to deceive by preventing inquiry as to rebates, both before and after the time of the interview. While no rebates may have been given at the precise moment plaintiff and Joyce met, and the statement may, therefore, have been true in a literal sense, yet plaintiff’s inquiry, and Joyce’s answer, were not limited to that exact time, but referred to a general prac
The fact that defendant had been paying rebates was discovered by plaintiff in September, 1905, and this suit was brought February 21, 1906. The original statement of claim is for damages to the extent of $100,000 which plaintiff alleges he suffered by reason of the unlawful payments of rebates by defendant to other' shippers. There is no express reference in this statement to the Act of June 4, 1883, P. L. 72, but defendant’s acts are alleged to be “in violation of the Constitution of Pennsylvania and the statutes passed in pursuance thereof.” On May 8, 1909, an amendment was filed which alleged defendant’s acts were “in violation of the Constitution of Pennsylvania and statutes passed in pursuance there
The right of plaintiff in a suit under the Act of 1883 to have damages trebled on motion has been recognized by this court in a number of instánces, the only question in such case being whether or not the jury in the verdict rendered had or had not included treble damages. One' of the most recent decisions is the case of Cox v. Penna. R. R. Co., 240 Pa. 27, where it is said: “The verdict for single damages was conclusive as to the question of undue and unreasonable discrimination. This left nothing to be considered by the jury in connection with the trebling of the damages. The statute made provision for that.”
The action of the court below in the present case makes it clear that no treble damages were included in the verdict and the question, therefore, is whether the amendment offered at the trial, followed' by the motion for treble damages, sets up a new cause of action which was barred by the statute of limitations, because the claim was not made within six years following the time the fraud was discovered in September, 1905. The proposed amendment of April 18, 1913, increases the damages claimed in the first paragraph of the statement of claim to $400,000. This additional damage claimed is not by virtue of a distinct cause of action, but merely increases the amount of plaintiff’s claim for the cause already alleged in the original statement. The amendment is,
The amendment sought to be made at the trial claiming treble damages stands on a different footing. An action of trespass at common law is brought to recover compensation for the injuries sustained by plaintiff by reason of defendant’s wrongful acts. An action under a statute like the one in question is brought to recover the penalty imposed by the act, and an amendment changing the form of action from one at common law to an action under the statute for a penalty has been uniformly considered by our courts as setting up a new cause of action, and therefore not allowed if the statute of limitations has run at the time the amendment is offered : Mitchell Coal & Coke Co. v. Penna. R. R. Co., 241 Pa. 536. The trial in this case occurred more than six years after suit was begun and unless the claim for treble damages was included within the scope of the original statement of claim, or the amendment of 1909, the claim for treble damages cannot be allowed. The original statement of claim contains no express reference to any particular statute, but merely refers to the violation of the provisions of the Constitution and statutes passed in pursuance thereof. The amendment of 1909 charges a violation of the Constitution and statutes in the same general language, but adds “particularly
Our own decisions seem to agree that it is sufficient to recite the facts constituting a cause of action within the statute and then follow by a reference to the act itself. In Rees v. Emerick, 6 S. & R. 286, which was an action for damages for illegal distraint of goods, it was said (page 288) : “It is a general principle that where a statute gives increased damages, the writ should conclude against the form of the statute.” In Hughes v. Stevens, 36 Pa. 320, where an action of trespass at common law was brought for damages for cutting timber on plaintiff’s land, it was said (page 324): “The third error is
The Act of June 4, 1883, P. L. 72, is entitled “An act to enforce the provisions of the seventeenth Article of the Constitution relative to railroads and canals.” It contains three sections. Section one makes unlawful any undue discrimination in freight charges or facilities by common carriers or any officer, superintendent, manager or agent thereof. Section two provides that the charges shall be uniform and concessions in rates and drawbacks shall be allowed to all alike, and all undue discrimination is forbidden. Section three, in the language of the Constitution, forbids any president, director’, officer, agent or employee of any canal or railroad company to be interested directly or indirectly in furnishing material or supplies, etc., to such company, and, for a violation of the act in this respect, imposes a penalty of fine or imprisonment. The only provision allowing an action to the shipper is the concluding sentence of section two as follows: “Any violation of this provision shall make the offending company or common carrier liable to the party injured for damages treble the amount of injury suffered.” When the only right of action provided by the act'is a liability to the party injured for treble the amount of the injury suffered, it is difficult to see how a reference to the act could fail to notify defendant that the suit was brought to recover treble dam
The case of Mitchell Coal & Coke Co. v. Penna. R. R. Co., 241 Pa. 536, relied upon by defendant, does not establish a different rule, as in that case there was no reference either to the-act or to the fact that treble damages were claimed.
It follows from a consideration of the above cases and the Act of 1883 that the amendment proposed on the trial should have been allowed, as it did not introduce a cause of action different from that covered by the previous pleadings. As counsel have agreed .on the facts as to shipment.of coal, etc., the judgment can be entered as if the amendment had been made.
If plaintiff is permitted to recover treble damages under the Act of 1883, it is plain he cannot at the same time claim damages for delay in payment of the injury sustained by him under the common law. The t remedy given by the Act of 1883 is penal in character and will not be construed to include other damages not covered by the wording of the act. In Hughes v. Stevens, 36 Pa. 320, it is said in regard to a similar statute: “The statutory action is cumulative to the common law remedy, or perhaps rather an optional or alternative remedy ; for a resort to either would be a bar to the other.” In Dunbar Furnace Co. v. Fairchild, 121 Pa. 563, which was an action to recover damages for cutting timber, it was held error for the court to treble the amount of a verdict which included interest as well as single damages. This case was followed in McCloskey v. Powell, 138 Pa. 383, where it is said (page 400): “The jury found the value of the timber trees, and computed interest thereon at $641.88. The court directed judgment to be entered for three times the value of the timber, and excluded the interest therefrom. The precise point was ruled in Dunbar Furnace Co. v. Fairchild, 121 Pa. 563, and is clear upon principle. The treble damages are given as a penalty, and we know of no case in which a
The first question raised by defendant’s appeal is whether the measure of damages of a shipper who had not received the benefit of a concession in rates given a competitor, is the amount of rebate given the latter. The trial judge charged that if defendant, or its agents, paid rebates or allowances to any other person, which were not also allowed plaintiff, the latter might recover the difference between the amount paid him and the amount he would have paid at the lowest rate charged or received from any person for like services and under similar circumstances and conditions. The correctness of this ruling must depend upon a proper construction of Section 2, of the Act of June 4, 1883, P. L. 72, which provides that “no railroad company or other common carrier, engaged in the transportation of property, shall charge, demand or receive from any person, company or corporation, for the transportation of property or for any other service, a greater sum than it shall charge or receive from any other person, company or corporation for a like service, from the same place, upon like conditions and under similar circumstances; and all concessions in rates and drawbacks shall be allowed to all persons, companies or corporations alike for such transportation and service upon like conditions, under similar circumstances, and during the same period of time. Nor shall any such railroad company, or common carrier, make any undue or unreasonable discrimination between individuals, or between individuals and transportation companies, for the furnishing of facilities for transportation. Any violation of this provision shall make the offending
In Hoover v. Penna. R. R. Co., 156 Pa. 220, an action was brought by a coal dealer to recover tbe amount of a rebate of a certain sum per ton wbicb was paid to a manufacturing establishment by defendant. Tbe lower court there instructed tbe jury that plaintiff’s measure of damages would be tbe difference between tbe charge to tbe manufacturing company and to plaintiff. This court held tbe instruction erroneous, saying (page 244) : “It does not at all follow that tbe amount of injury suffered is tbe difference in tbe rates charged. It might be, or it might not be, but, in any event, it must be a subject of proof, and there was no proof in tbe case of tbe actual damages sustained.” Mitchell Coal & Coke Co. v. Penna. R. R., 241 Pa. 536, seemingly contradicts that decision. There, tbe complaint was by one coal shipper of a rebate allowed another, under tbe same circumstances and conditions, and tbe referee stated tbe measure of damages was tbe amount of concession wbicb would have been paid plaintiff bad be received tbe same rebate as tbe favored shipper. Tbe Hoover case was cited before tbe court at that time; tbe finding of tbe referee was, however, affirmed, this court saying (page 540) : “Tbe effect of tbe rebate was to cause damage to tbe plaintiff to tbe extent of tbe rebate. Tbe services of tbe defendant company to tbe Gallitzen Colliery after October, 1899, were similar to those rendered tbe three favored companies, Altoona, tbe Glen White and tbe Mil-wood, and tbe plaintiff was injured to tbe extent of tbe rebates allowed these companies.” A comparison of tbe facts in tbe above cases shows tbe decisions are not inconsistent with each other. In tbe Hoover case plaintiff was a coal dealer, and tbe favored company a manufacturing establishment, and it was held in that case there was no equality of conditions wbicb would justify plaintiff in demanding tbe same rate given tbe manufacturing company. In tbe Mitchell Company case tbe
Objection is also made that the State courts are without jurisdiction of an action for unlawful discrimination in freight rates as to such part of the coal which was shipped plaintiff from the Pennsylvania anthracite
The cases of the Puritan Coal Mining Co. v. Penna. R. R., 237 Pa. 420; Walnut Coal Co. v. Penna. R. R., 237 Pa. 410; Sonman Shaft Coal Co. v. Penna. R. R., 241 Pa. 487, and others relied on by plaintiff, were all actions for damages for unlawful discrimination in the furnishing of cars, and it was there held, in effect; that as neither congress nor the Interstate Commerce Commission had undertaken to legislate concerning the particular subject-matter, which was one of local concern, the federal and state jurisdictions were concurrent, even though the cars were ultimately to be used in interstate commerce. In Clark Bros. Coal Mining Co. v. Penna. R. R. Co., 241 Pa. 515, the various decisions were discussed by the court below in a’n opinion which was affirmed on appeal, and it was said the coal, which it appeared was sold f. o. b. cars at the mines, did not become
It follows that the judgment of the court below must be reversed and judgment entered for plaintiff for an increased amount. The amount of the judgment will be computed by taking the difference between the sum of $93,111.88, which sum is made up as per computation based upon a stipulation entered into between the parties as to the tonnage and rebates allowed thereon, and the sum of $10,225.75, being the amount of rebates on tonnage which passed outside the State of Pennsylvania in the course of shipment, to wit, $82,886.13, which multiplied by three makes $218,658.39, the amount of the judgment.
Judgment reversed and judgment for plaintiff for $218,658.39.
On Reargument:
March 12,1917:
These appeals were first heard January 18, 1915, and a reargument, ordered of our own motion, was heard March 13, 1916. On July 1, 1916, an opinion was filed by Mr. Justice Frazer, entering judgment for the plaintiff for $218,658.39. A second reargument was ordered on the application of learned counsel for the defendant, to enable them to reargue the questions of the application of the statute of limitations and of the right of the