73 S.E. 1020 | S.C. | 1912
March 2, 1912. The opinion of the Court was delivered by The facts out of which this action arose, briefly stated, are as follows: *477
On December 5, 1908, plaintiff delivered to the Chattahoochee Valley Railway Company, at Langdale, Ala., two carloads of extra large and long timbers for transportation to Kings Creek, S.C. The shipment passed over the line of an intermediate carrier, and was delivered to defendant at Atlanta, Ga., and was carried by defendant to destination. The initial carrier issued a through bill of lading, in which the shipment was classed as lumber, and, according to plaintiff's testimony, the general manager of that road quoted plaintiff the rate on lumber from Langdale to Kings Creek, before the shipment was delivered to it. For the service, defendant demanded at destination and plaintiff paid the rate on a contractor's outfit, which amounted to $143.92 more than the rate on lumber, and this action was brought to recover that amount.
The defendant demurred to the jurisdiction of the Court on the ground that the interstate commerce act vests in the interstate commerce commission and the Federal Court's exclusive jurisdiction of actions to recover overcharges on interstate shipments. The Court overruled the demurrer. The exceptions assigning error in doing so will be disposed of first.
There was no contention as to the reasonableness of the rate either on lumber or on a contractor's outfit. Nor did the plaintiff contend that defendant was bound by the classification of the shipment made in the bill of lading. But his contention was that he was made to pay the rate on a contractor's outfit, when the shipment actually consisted of lumber.
The timbers had been parts of a derrick which plaintiff had used in his business, and holes had been bored in them for the insertion of iron pins and bolts in the construction of the derrick, and the ends of some of them had been rounded and banded with iron. But, according to plaintiff's testimony, he had been shipping such timbers for years as lumber, by agreement with the railroad companies, — the defendant *478 among them, — the only condition being that all irons should be removed from them, which his testimony tended to show had been done in this instance, though it was contradicted by some of defendant's witnesses. Plaintiff's testimony also tended to show that when the irons were removed from the timbers, they were worth no more than so much new timber or raw material; that whenever they were used again, they were reworked, and the old holes were not utilized; and that he would not have shipped them at the rate on a contractor's outfit, because it would have been cheaper for him to buy new timbers.
There can be no doubt that if the shipment was properly classed as a contractor's outfit, defendant was not only entitled to charge and collect the established rate on that class of freight, if it had proved the filing and publication of the schedule of rates in compliance with the interstate commerce act, but it was bound, under heavy penalty, to do so, and that without regard to any agreement between the shipper and the carrier as to the rate or classification whether stipulated in the bill of lading or not. Gulf etc. R. Co. v.Hefley,
There was testimony tending to show that the rate quoted plaintiff on lumber was the rate agreed upon between defendant and its connecting carriers in a joint schedule of rates filed with the interstate commerce commission, and, therefore, that the initial carrier had authority under the common law to bind defendant in quoting the rate. Without proof of some authority given the initial carrier, the *479
defendant would not have been bound even under the common law by the rate quoted the plaintiff by the initial carrier.Smith v. Southern Ry. Co.,
Upon these facts and circumstances alleged in the complaint, and established prima facie, at least, by the testimony, it cannot be denied that plaintiff had a cause of action against defendant at common law; and the action is, in fact, brought under the common law, and not under the interstate commerce act either for damages for violation of that act, or upon any right or cause of action created thereby. Therefore, by the express terms of that act, the jurisdiction therein conferred upon the commission and the Federal Courts is cumulative and not exclusive, for in section 22 we read: "Nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies." In M.K. T. Ry. Co. v.New Era Milling Co., 100 P. 273, the Supreme Court of Kansas held that the State Court had jurisdiction of an action to recover excessive charges on an interstate shipment when the plaintiff did not rely upon the interstate commerce act, but based his claims upon the principles of the common law. The same principle is held in Gulf etc. R.C. v. Moore,
The allegation in the complaint in this action that the classification and rate agreed upon and stipulated in the bill of lading were in conformity with the classification and rate filed with the interstate commerce commission was not made to bring the action under the interstate commerce act, but to lay the foundation to recover the penalty provided by the statute of this State against carriers for failing to settle their freight charges according to the rate stipulated in the bill of lading, provided the rate therein stipulated is in conformity with the classification and rate filed with the interstate commerce commission (24 Stat. 81); and therein lies the difference between our statute and the Statute of Texas, which was held in the Hefley case, supra, to be in conflict with the interstate commerce act, because it undertook to compel the carrier to settle according to the rate stipulated in the bill of lading, regardless of whether it was the rate filed with the commission or not.
In Texas Pac. Ry. Co. v. Abilene Cotton Oil Co.,
Numerous cases hold, we think correctly, that the Federal Courts and the interstate commerce commission have exclusive jurisdiction of actions based upon the interstate commerce act, or brought to enforce a right created by that act. Van. Patton v. Chicago etc. R. Co., 74 Fed. 981;Edmunds v. Illinois Central R. Co., 80 Fed. 78; Carlisle
v. Missouri etc. R. Co.,
In Banner v. Wabash R. Co., 108 N.W. 759, the plaintiff was required to pay an arbitrary charge made by the carrier, because he shipped sixteen head of cattle in an emigrant car, when the rules of the carrier fixing the rate limited the number to be shipped in such car to ten, and provided that the freight on animals in excess of that number should be at a certain rate, and established an arbitrary weight on which the computation should be made. There was nothing in the schedule of rates or classification filed with the interstate commission authorizing a charge for such arbitrary weight. The Supreme Court of Iowa held that the State Court had jurisdiction of an action to recover the amount so paid by plaintiff, the suit not being one to recover an overcharge under the interstate commerce act, but to recover a wholly unjust and unauthorized exaction demanded and collected not only in violation of the act itself, but in violation of the contract made with plaintiff, and, therefore, in violation of the common law.
In Wabash R. Co. v. Sloop, 98 S.W. 607, the Supreme Court of Missouri held that the State Court had jurisdiction of an action by a shipper to recover an amount collected by a carrier on an interstate shipment in excess of *485
the rate agreed upon between the carrier and the shipper, notwithstanding the carrier had filed its schedule of rates with the interstate commerce commission, and notwithstanding the rate collected was the schedule rate. The ground upon which the Court based its decision was that the carrier did not prove that it had published the schedule of rates as required by the interstate law. The Court held that the carrier was bound to show that it had brought itself within the purview of the act by compliance therewith before it would be allowed to base any defense upon its provisions. The same ruling was made in Railroad v. Leatherwood
(Tex.Civ.App.),
To hold that the State Courts have no jurisdiction of actions like this will result in so much inconvenience and be so injurious in its consequences to the citizens of the States, and will place them so completely at the mercy of interstate carriers with regard to the settlement of such claims, that the argument in favor of that conclusion should be more cogent and convincing than it is to induce its adoption. The practical result of requiring shippers to go before the interstate commerce commission or in the Federal Courts to collect these small claims will be to compel the abandonment of them altogether. We feel sure that Congress did not contemplate or intend any such result, and in the absence of such intent, plainly expressed in or necessarily to be inferred from the provisions of the act, we are not inclined to adopt a construction which will lead to that result.
The next assignment of error is in admitting in evidence two letters written to plaintiff by J.A. Avery, the general manager of the Chattahoochee Valley Railway Company, the initial carrier, and in allowing plaintiff's agent, Jamison, to testify as to the rates quoted him by Mr. Avery. The first letter is dated November 26, 1908, and was written before the shipment was delivered to the initial carrier. It quoted rates on lumber and a contractor's outfit from Langdale to Kings Creek. The other is dated September 2, 1909, and was written after the controversy had arisen between plaintiff and defendant about the alleged overcharge. In this letter, Mr. Avery states that on November 26, 1908, he quoted plaintiff rates and gives the rates quoted. He also states that the shipment was billed out by his road as lumber, and at the rate on lumber, and that the rate was raised beyond his line, and *487 the rate on a contractor's outfit used. We deem it unnecessary to consider in detail the numerous grounds upon which the objection to this testimony was made, because it is apparent that there was no dispute about the facts which it tended to prove, and that they were conclusively proved by indisputably competent evidence, — the rates by the schedule of rates, filed with the interstate commerce commission, and the building of the initial carrier, by its bill of lading and the way bill, all of which were in evidence. Moreover, the Court clearly and correctly charged the jury that the parties could not, by any agreement or device, vary or depart from the schedule of rates filed with the interstate commerce commission; and that, if plaintiff, by fraud or mistake, shipped a contractor's outfit as lumber, it was the right and duty of defendant to make the proper correction and collect the rate on a contractor's outfit; but, if the shipment was, in fact, lumber, defendant had no right to collect the higher rate; and, hence, an important inquiry for them was, whether the shipment was lumber or a contractor's outfit. So that, even if we were to concede, which we do not, that the testimony was erroneously admitted, it is clear that the error was harmless.
There was no error in admitting evidence that for some years defendant had been carrying the same and similar timbers as lumber. There was nothing in such testimony which tended to vary the schedule rate, but it merely tended to prove the opinion previously held by defendant's agents and experts as to the real nature of the shipment which was necessarily a subject for opinion; and, therefore, defendant's experts were allowed to testify that, in their opinion, the shipment should have been classed as a contractor's outfit. Therefore, it was clearly competent to prove that for some years past defendant's agents and experts had entertained a different opinion, which was evidenced by the fact that the same and similar timbers had been carried by defendant as lumber; and, hence, that *488 defendant's present contention was not well founded. There was, therefore, no error in the instruction that the jury might, in determining the real nature of the shipment, consider how similar shipments had been regarded and dealt with by the parties themselves, — especially as the jury were cautioned that no device or agreement or custom of dealing between the parties could avail to make the shipment other than what it really was, and that they must determine its real character.
The Court charged, in substance, that if raw materials were used to construct a machine, or other structure, and if such machine or structure were shipped, it would be subject to its proper classification and rate, but, if it were resolved into its original elements, these might be shipped as such, each being subject to its original classification, notwithstanding it had once been a part of a machine or other structure. The idea was illustrated by telling the jury that if raw materials, lumber, etc., were used to construct a house, and if the house were afterwards torn down and resolved into its original elements, that which was lumber might be shipped as lumber. We see no error in this instruction. Certainly, the fact that materials have at one time been used for a certain purpose or in a particular way does not irrevocably devote them to that purpose or to be used in that way and no other. We see no reason why a cable which has been used in connection with and as part of a derrick, or other machine, should not be classed as a cable for transportation, when it has been disconnected from the derrick or machine.
The defendant asked the Court to direct the verdict in its favor on the ground, among others, that the money paid on account of the alleged overcharge could not be recovered, because the payment was voluntary. This request was refused. It is an elementary principle that no action will lie to recover money voluntarily paid with full knowledge of all the facts. Robinson v. City Council, *489 2 Rich. 317; Kenneth and Gibson v. S.C.R. Co., 15 Rich. 284. The grounds upon which this principle of law is based are so fully stated and clearly reasoned in the cases cited that we deem it unnecessary to prolong this opinion by any further discussion of them. The general rule is thus succinctly stated in 30 Cyc., 1298: "Except where otherwise provided by statute, a party cannot, by direction or by way of set-off or counterclaim, recover money voluntarily paid with a full knowledge of all the facts, and without any fraud, duress, or extortion, although no obligation to make such payment existed."
It follows that when one undertakes to recover money which he has paid to another, he must allege and prove some fact or facts which will take his case out of the general rule above stated. Otherwise, his complaint would be subject to demurrer for insufficiency. Plaintiff recognized this, because he alleges in his complaint that defendant coerced the payment of the alleged overcharge by refusing to deliver his goods until it was paid. We have searched the record diligently without being able to find any evidence tending to prove this allegation. On the contrary, it appears that the money was paid after the shipment was delivered to plaintiff. In their argument upon this point, respondent's attorneys make no attempt to point out any evidence tending to support the allegation of the complaint, that the payment was made under compulsion. They do attempt to show some testimony from which it might be inferred that the money was paid under the mistaken assumption or belief that the amount charged by defendant was the rate on lumber; or, because it was difficult to figure the correct amount from the data at hand, that the payment was made under mistake or in ignorance of all the facts. They also argue that it is inferable from the testimony that the change of the rate was concealed from plaintiff, and, hence, that there was a fraudulent concealment of facts. *490
If we concede that such inferences might be drawn, we do not see how this can help the plaintiff, for unfortunately there is no allegation of any such facts or grounds of recovery in the complaint. The purpose of pleading is to advise the parties of the issues which they will be called upon to meet at the trial. It would violate one of the fundamental rules of law and pleading to allow the plaintiff to recover upon a different ground from that alleged. It is elementary that the allegata and probata must correspond. We are constrained to hold that on this ground the verdict should have been directed for defendant; and, therefore, the judgment below must be reversed.
Judgment reversed.
MESSRS. CHIEF JUSTICE GARY and JUSTICE WOODS onlyparticipate in this opinion and concur.