99 P. 819 | Kan. | 1908
Lead Opinion
The argument in this case covers a wide range of subjects connected with the interstate commerce law, and both sides of the controversy have been clearly and ably presented. The facts of the case, however, as they come here, may eliminate some of the questions discussed. The trial court not having filed conclusions of fact, we will be compelled, under the long-established rule of this court, to assume that - it found every fact necessary to support the judgment rendered to be established by the evidence, if there is any testimony in the record tending to sustain such facts. (Mushrush v. Zarker, 48 Kan. 382, 29 Pac. 681; Blanchard v. Jackson, 55 Kan. 239, 37 Pac: 986; Thompson v. Pfeiffer, 60 Kan. 409, 59 Pac. 763; Taylor v. Herron, 72 Kan. 652, 82 Pac. 1104.)
The first point presented by the plaintiff in error is that the action, though prosecuted apparently for the recovery of overcharges, is in reality one to recover rebates. It is argued that the Kansas City Southern railway hauled the grain for Forrester Brothers as alleged, and collected the lawful rate therefor, and this action was instituted to .recover a part of that rate under the plea that the company agreed to take less than the established rate. Of course, if this claim were sustained by the evidence this action would be at an end. The district court, however, did not take this view of the testimony, and we are unable to find any substantial support for this position in the facts presented by the record. The evidence abundantly sustains the claim of the plaintiff that a contract was made for the carriage of grain for Forrester Brothers, as claimed, to wit, for a joint rate of sixteen and one-half cents, of which the Kansas City Southern agreed to accept eight cents per hundred as its proportion of the rate. This contract is established by the officers who made it. There is no controversy in the evidence upon
The railway company insists that this rate is unlawful and void, for these reasons: First, that it was not filed with the interstate commerce commission and published, as required by the interstate commerce law, and, second, that it was in conflict with other rates which were legally established and existing at that time. It is further claimed that the Kansas City Southern had an established local rate between Kansas City, Mo., and the points of destination mentioned in the Forrester rate of ten cents per hundred, and, as there was no established joint rate, one could not be made by contract for less than the sum of the two locals. As applied here, this- contention means that at the time when the Forrester rate was agreed to each of the roads interested in that rate had a duly established local rate over their lines between Omaha and common points and Kansas City, and between Kansas City and Texarkaná and common points; that, as these roads had no legally established joint rate, they could not make one for less than the,sum of the two locals, for the reason that such joint rate.would conflict with a rate lawfully established under the interstate commerce law, which would be unlawful. It is conceded that these roads could have established a joint rate at any reasonable amount, and without reference to local rates, by taking the required legal steps for that purpose. It is also claimed that the Kansas City Southern railway had a legally established joint rate in connection with other lines between St. Joseph, Atchison, Leavenworth, and common points, through Kansas City, to Texarkana and common points, and its proportion of such joint rate was ten cents a hundred, and that this rate was •the legally established rate which applied to all freight shipped south over the Kansas City Southern for which there was no legal rate beyond Kansas City, and therefore the Forrester Brothers grain had to be taken under
We can not concur in this conclusion. The facts in the record, taken in connection with the judgment of the trial court, will not sustain this position. The contention that each of the roads making the Forrester rate had a legally established local rate is not sustained by the evidence. No such proof was offered. There was some talk by the witnesses of a local rate, and what it was on each road, but no proof that such rate had been established under the law was presented. The contract as alleged by the plaintiff having been clearly established, the burden was upon the railway company to show by way of defense that such contract was for some reason unlawful. If the invalidity resulted from the existence of legally established rates with which the rate relied upon by the plaintiff was in conflict, it was incumbent upon the railway company to allege and prove such fact. (Railway Co. v. Relf, 78 Kan. 463, 97 Pac. 477; Railroad v. Horne, 106 Tenn. 73, 59 S. W. 134; Southern Pacific Co. v. Redding & Son, 17 Tex. Civ. App. 440, 43 S. W. 1061; Southern Kansas Ry. Co. of Texas v. J. W. Burgess Co., [Tex. Civ. App. 1905] 90 S. W. 189.) This was not done. In the absence of such proof we are compelled to hold, as the trial court evidently did, that there were no legally established local rates which were in conflict with the rate made for Forrester Brothers or which would, in any manner affect the validity of the last-named rate. The joint rate made by the Kansas City Southern in connection with connecting roads other than the northern connecting lines, to the making of which the lines • last named and Forrester Brothers were not parties, and to which, they did not consent, could not affect the joint rate previously made for Forrester Brothers. A joint rate is only binding upon the lines which agree to it and ship
Forrester Brothers were satisfied with the rate which they made and relied upon, and do not wish to exchange it for one made by other parties, in their absence, without their knowledge, and to which they have not consented ; and we are unable to see any good reason why they should be compelled to accept such a rate. There being no rate established under the law, a rate by contract was proper and lawful. (Wabash Ry. Co. v. Sloop, 200 Mo. 198, 98 S. W. 607; Carlisle v. Missouri Pacific Ry. Co., 168 Mo. 652, 68 S. W. 898.)
Upon the point that the rate agreed to was void because it was" not established under the law, several decisions have been cited holding that rates made for a less amount than the established rate are unlawful and the shipper will be held to pay the established schedule rate notwithstanding his contract, even when he is innocent and ignorant of the established rate. These cases do not apply here, however, for the reason that in this case there was no established rate. This was the first joint rate ever made between these roads. No local rate had been established by either road on the route covered by this rate.
It will also be noted that this rate was made in September, 1901, and shipment began thereunder immediately. The steps necessary to the legal establishment of such rate must of necessity have been taken thereafter. This the shipper could not do. We conclude, therefore, that at the time the joint rate was made for Forrester Brothers it was not in conflict with any established rate which in any manner affected its validity.
While it is true that no definite agreement was made as to the quantity of grain which Forrester Brothers might ship under this rate, nor as to how long the rate should continue, yet, considering the whole evidence, it is apparent that the entire shipment was contemplated by both parties. Very soon after the rate was agreed upon the representative of Forrester Brothers notified the companies that they wanted 500 cars. They were told that while such a large number could not be furnished at once they would be supplied as rapidly as possible. Cars were furnished from time to time, and shipments made to the extent of over 400 cars. No notice was given to Forrester Brothers that the rate had expired, but on the contrary, when demand was made by them that the overcharges paid be returned, promises were made that an adjustment of the matter would be made. Under this evidence the trial court would be justified in finding, as it evidently did, that the rate covered the entire shipment.
It is argued that the district court did not have jurisdiction of this case, for the reason that the interstate commerce act gives exclusive jurisdiction to the federal courts in actions to recover overcharges made in viola
Finally it is contended that the overcharges were paid voluntarily, and therefore can not be recovered. The payments were made by the financial agent of Forrester Brothers at Kansas City, who did not know what rate had been agreed upon, but assuming the bills presented were in accordance with the contract made payment without objection or question.- The bills thus paid were forwarded to Forrester Brothers, who did not notice the fact of overpayment for some time. When it was brought to their attention they took the matter up with the general freight officers of the railroads, and under promise that the matter would be adjusted the question was postponed from time to time. The courts have quite generally refused to apply the ordinary rule of voluntary payment to cases of this kind. In the case of The Louisville, Evansville and St. Louis, etc., Railroad Co. v. Wilson et al., 132 Ind. 517, 32 N. E. 311, 18 L. R. A. 105, the supreme court of Indiana said:
“We are of the opinion, however, that the decided weight of authority is that the payment of an overcharge of freight to a railroad company engaged as the common carrier of goods is not a voluntary payment within the ordinary meaning of that term.” (Page 521.)
In the case of Heiserman et al. v. The Burlington, Cedar Rapids & Northern Railway Co., 63 Iowa, 732, 18 N. W. 903, it was said:
“Those who do business with railroads never come in contact with the officers who possess authority to*74 fix or abate rates of charges; indeed, they usually hardly know their names or where to find them. .. . . These considerations take the case from the operation of the familiar rule which forbids recovery on account of payments voluntarily made without objection or protest.” (Page 737.)
In the case of Mobile & Montgomery Railway Co. v. .Steiner, McGehee & Co., 61 Ala. 559, it was said:
“The nature of the business considered, the shipper does not stand on equal terms with the carrier in contracting for charges for transportation; and if the shipper pays the rates established in violation of law by the carrier, rather than forego his services, such payment is not voluntary, in the legal sense, and the shipper may maintain his action for money had and received, to recover back the illegal charge.” (Syllabus.)
In The Louisville, Evansville and St. Louis, etc., Railroad Co. v. Wilson et al., 132 Ind. 517, 18 L. R. A. 105, it was said:
“Indeed there seems to be but little conflict in the authorities in this country holding that the payment to a railroad company engaged in the business of common carrier of an overcharge of freight for goods transported over the road of such company is not a voluntary payment, as the law interprets that term.” (Page 522.)
This rule seems to be placed upon the ground that the parties do not stand upon equal grounds, and an objection or protest would be unavailing. In the case last cited a large number of cases are cited to the same ■effect. We think that under the facts of this case the payment should not be held to be voluntary so as to bar a recovery, even under the ordinary rule, and certainly not under the rule stated in the above cases.
We have been unable to find any error in the action of the trial court. We concur in the controlling questions of law declared by it, and think it fairly interpreted the evidence. The judgment is therefore affirmed.
Rehearing
No. 15,627.
The opinion of the court was delivered by
A petition for a rehearing has been filed in this case, calling attention to a misstatement of fact in the opinion. The misstatement consists of a misuse •of terms in describing the rates in force on the Kansas City Southern road when the rate with Forrester Brothers was made. The rate which the Kansas City Southern road had from Kansas City south to Texarkana and other points, in connection with the lines from Atchison, St. Joseph, Leavenworth, and other common points, was a proportional rate, instead of a joint rate, as stated in the opinion. The difference between these rates is quite material to that road, from its theory of the case. This proportional rate was regularly established under the provisions of the interstate commerce law, and if it was applicable to the shipments made by Forrester Brothers then no overcharges were made and no recovery should have been had by them. We. do not think this rate, by whatever name designated, had any application to the Forrester Brothers shipment.
It is claimed that a proportional rate applies to all freight shipped between points where it exists, unless •some other established rate applies. As applied to the Forrester Brothers shipment, it is claimed that the freight came to the Kansas City Southern road at Kansas City, and was reshipped from there to Texarkana or other points, the same as shipments originating at that point; and the rule as to the rates to be applied was the same as that which controlled in all other shipments from that point. We do not concur in this view. A proportional rate may apply to all freight which is not being carried under some other legal rate; but, if it does, the rule has no application here. As stated in the.opinion, Forrester Brothers made a contract for a
All of the shipments made by Forrester Brothers were through shipments from Omaha to Texarkana, and should have been “billed through.” This was the contract, and no mere colorable reshipment at Kansas City, by issuing new bills, could modify or avoid it. With this explanation we are satisfied with the opinion.
The petition for a rehearing is denied.