219 F. 457 | 8th Cir. | 1915
It is assigned as error that the trial court erred in rendering judgment in favor of the railway company, upon the pleadings: First, because it had no jurisdiction; second, because the pleadings did not warrant such a judgment. The action was commenced in the district court for the city and county of Denver, and was removed to the Circuit Court of the United States for the District of Colorado by the railway company. The amended complaint of plaintiffs in error alleged, in substance: That they were on February 12, 1908, the owners of 22,334 head of yearling wethers at Gallego, state of Chihauhua, republic of Mexico, and on said date entered into an agreement with the railway company for the transportation of said sheep from Gallego via El Paso, Tex., to Stockdale, 111., there to be unloaded by the railway company and fed and fattened for the Chicago market, and then transported to the Union Stockyards, Chicago, 111. That the consideration for the care and feeding of said sheep at Stock-dale, 111., over and above the transportation charge, was about $1 per head per ton on hay, corn, and screenings above the weekly market price of said feed. That as a part of said agreement the Railway Company represented to plaintiffs in error that said sheep would be ready for the Chicago market within 45 or 60 days after their arrival at the said feedyards of the railway company, and that said railway company had in its employ men thoroughly competent to care for and feed said sheep for the Chicago market. That in pursuance of said contract plaintiffs in error delivered said sheep to the railway company for transportation, consigning 11,310 head in the name of Klink and Simonson to Smith Bros., Commission Company, Union Stockyards, Chicago, 111., and 11,-024 head in the name of C. W. Trimble to Clay, Robinson & Co., to the same destination. That the Railway Company received and ac
For the sake of brevity it does not seem necessary to set forth all the allegations of the answer, which are quite lengthy, hut only to set forth that part of the answer v/hich, according to the brief of the railway company, justified the judgment below. In other words, it is not necessary to set forth those allegations of the answer which merely created an issue with the complaint, or which would require proof in order to be availed of as a defense. The answer of the railway company alleged that subsequent to the 12th day of February, 1908, plaintiffs in error tendered to the railway company for shipment at Texhoma, Okl., 22,334 head of yearling wethers, being the same animals mentioned in the complaint; that the railway company accepted said sheep for shipment to Chicago, 111., by way of the town of Stockdale, Ill., and thereupon issued its certain live stock contracts in writing, which contracts were signed by the plaintiffs in error or their duly authorized agents. The answer further alleged:
“That at the time when the shipments of sheep alleged in the complaint were made, the defendant was a common carrier engaged in interstate com*460 merce and subject to each and every of the provisions of the act of Congress approved February 4, 1887, entitled, ‘An act to regulate commerce,’ and all acts amendatory thereof. That under and by virtue of said act of Congress and all acts amendatory thereof, it had theretofore jointly with connecting carriers, issued and published and filed with the interstate Commerce Commission of the United States, and posted and filed as required by said acts, certain official tariffs known and designated as follows:
“ ‘1. Southwestern Tariff Committee’s Tariff No. 7-M.
“ ‘2. Chicágo, Rock Island and Pacific Railway Company’s Tariff No. 18400.
“ ‘3. Chicago, Rock Island and Pacific Railway Company’s Tariff No. 21500.’
“Which said tariffs were then and there in force and effect and were the only tariffs applicable to the shipment of sheep referred to in the complaint and under which the same could be lawfully moved, by this defendant or its connecting carriers; that in and by said tariff designated as ‘Southwestern Tariff Committee’s 'Tariff No. 7-M,’ it was provided that the rate upon sheep from El Paso, Tes., to Chicago, 111., shipped in double deck cars, with a minimum; weight of 22,000 pounds, at shipper’s risk, with the released valuation with right to feed in transit, was and should be 74% cents per hundred pounds, with an additional charge of $2 per ear for delivery of such sheep to the Union Stockyards in Chicago, 111.; that for a similar shipment without limitation upon the carrier’s liability, a rate of 120 per cent, of said rate of 74% cents per hundred pounds should be charged; that in and by said tariff designated as ‘Chicago, Rock Island & Pacific Railway Company’s Tariff No. 18400,’ it was provided as follows:
“ ‘Feeding in transit is only allowed on live stock at regular feeding stations, which are Eldon, Muscatine and Valley Jctn., Iowa, Silvis and Stock-dale, Illinois, the above points having capacities for the following number of .head and kinds of live stock:
“‘When shipments are tendered you with shipping directions to stop and feed at stations other than those mentioned above, or to fill up or partially unload commodities, you will call the attention of the shippers to our rules, and if they insist upon the shipping instructions, you will bill to the point at which they desire car to be stopped at full tariff rate (instead of to ultimate destination), noting on billing “Car to be forwarded to - (ultimate destination),” and advise the shipper that the charges will be at full local rates to and from stopping points.’
“That in and by said tariff designated as Chicago, Rock Island & Pacific Railway Company’s Tariff No. 21500, that the defendant should charge for feed supplied to sheep in transit while at said Stockdale Yards, or other yards on the line of this defendant where feeding in transit is permitted by said tariff, as follows:
“ ‘When held for metre than fifteen days: $16.00 per ton for prairie hay, $20.00 per ton for alfalfa hay, $24.00 per ton for corn, 75 cents per bushel for oats, $16.00 per ton for screenings and 75 cents per 100 lbs. for bedding.
*461 “‘When held less than fifteen days: $20.00 per ton for prairie hay, $22.00 ner ton for alfalfa hay, $í¡0.00 per ton for corn, 75 cents per bushel for oats, $20.00 per ton for screenings and 75 cents per 100 lbs. for bedding.’ ”
Plaintiffs in error filed a reply to the answer of the railway company, denying a large part of the answer and praying for judgment as originally demanded in the complaint. As to the allegation hereinbefore quoted from the answer, in regard to the tariffs of the railway company, plaintiffs in error in their reply alleged:
“That as to whether or not the defendant and its connecting carriers had published and filed a tariff or tariffs, as in said defense alleged, these plaintiffs cannot, within the time permitted for tho filing of this replication, obtain sufficient knowledge or information upon which to base a belief, and, for the purposes of this replication, as to said defense, therefore deny the same.”
“As we have seen in this ease, the defendant applied for a removal of the case to the federal court. Thereby he is foreclosed, from objecting to its jurisdiction. In like manner, after the removal had been ordered, the plaintiff elected to remain in that court, and he is, equally with the defendant, precluded from making objection to its jurisdiction.”
The following cases sustain the same proposition: Western L. & S. Co. v. Butte & Boston Consolidated Mining Co., 210 U. S. 368, 28 Sup. Ct. 720, 52 L. Ed. 1101; Kreigh v. Westinghouse, Church, Kerr & Co., 214 U. S. 249, 29 Sup. Ct. 619, 53 L. Ed. 984; Louisville & Nashville R. R. Co. v. Western Union Tel. Co., 234 U. S. 369, 34 Sup. Ct. 810, 58 L. Ed. 1356; McPhee & McGinnity Co. v. U. P. R. R. Co., 158 Fed. 5, 87 C. C. A. 619 (C. C. A., 8th Cir.).
We think that under the facts appearing in the record the trial court clearly had jurisdiction.
It appears, however, that this court did, in the case cited, proceed and consider the point which it suggested was not sufficiently raised. Whatever may be the rule in ordinary cases, we think that in a case where the court has rendered judgment upon the pleadings for either party, an assignment of error, stating generally that the court erred in rendering the judgment upon the pleadings, is sufficient, as it directs the attention of this court directly to the point to be considered.
Counsel for the railway company in their brief rely alone upon the following proposition to sustain the action of the court below in rendering the judgment against the plaintiffs in error.
“(d) The agreement to feed and fatten, upon which the amended complaint is predicated, required the defendant in error to exercise skill as an agister, outside of carriage, and outside of the obligation to furnish, within reasonable limits, such food as a shipper might wish to buy for the care of his stock in transit. Such an obligation the carrier did not offer to assume towards the public generally, nor did it make or publish a tariff therefor. Such a contract, had it been in fact made, would have been unlawful and void, and the court did not err in directing judgment on the pleadings.”
We understand this proposition to mean that, conceding for the sake of argument that the railway company made a contract with plaintiffs in error to transport its sheep and feed and fatten them at Stockdale, 111., for the .Chicago market, such an arrangement is not extended to all shippers by the tariffs of the railway company on file with the Interstate Commerce Commission, and that therefore the contract is void as discriminatory under the following decisions:
“In the matter of rates, Kansas City, Memphis & Birmingham Railroad Company, 8 Interst. Com. R. 121, at p. 135; Shiel v. Illinois Central R. Co., 12 Interst. Com. R. 211; Chicago, Rock Island & Pacific Ry. Co. v. Hardwick Farmers’ Elevator Co., 226 U. S. 426 [33 Sup. Ct. 174, 57 L. Ed. 284, 46 L. R. A. (N. S.) 203]; N. Y., N. H. & H. R. Co. v. I. C. C., 200 U. S. 361 [26 Sup. Ct. 272, 50 L. Ed. 515]; Chicago & Alton R. R. Co. v. Kirby, 225 U. S. 155 [32 Sup. Ct. 648, 56 L. Ed. 1033, Ann. Cas. 1914A, 501]; Kansas City Southern Ry. Co. v. Carl, 227 U. S. 639 [33 Sup. Ct. 391, 57 L. Ed. 683]; Clegg v. St. Louis & S. F. R. Co., 203 Fed. 971 [122 C. C. A. 273]; Elwood Grain Co. v. St Joseph & G. I. Ry. Co., 202 Fed. 845 [121 C. C. A. 153] (C. C. A., 8th Cir.); Cleveland, C., C. & St. L. Ry. Co. v. Hirsch, 204 Fed. 849 [123 C. C. A. 145]; Engemoen v. Chicago, St. P., M. & O. Ry. Co., 210 Fed. 896 [127 C. C. A. 426]; Winn v. American Express Co., 149 Iowa, 259, 128 N. W. 663; Siemonsma v. Chicago, M. & St. P. Ry. Co. [158 Iowa, 483] 139 N. W. 1077; St. Louis, I. M. & S. Ry. Co. v. West Bros. [Tex. Civ. App.] 159 S. W. 142; Chicago, Rock Island & Pacific Ry. Co. v. Beatty (Okl.) 141 Pac. 442.”
We are satisfied that the judgment entered below against the plaintiffs in error was erroneous, and therefore are of the opinion that it should be reversed, and the case remanded for a new trial; and it is so ordered.