64 Wash. 589 | Wash. | 1911
This is an appeal by the plaintiff from a judgment dismissing its action after a demurrer to the complaint therein had been interposed and sustained.
“(3) That between the 6th day of July, 1904, and the 14th day of June, 1909, inclusive, the said railway company for hire, undertook and agreed to transport and deliver from said St. Paul and other points along its line of railway, freight in car load lots to be delivered to the said plaintiff at Seattle, state of Washington.
“(4) That the said defendant falsely and fraudulently represented to this' plaintiff at said time that there was certain switching charges levied by its connecting carrier, Columbia & Puget Sound Railway Company, for switching said car load lots of freight in and onto said track, onto or near the warehouse of this plaintiff, so that said cars might and could be unloaded by this plaintiff, and that said switching charges were made and collected by said connecting carrier from all consignees from all points along its line of railway, and falsely and fraudulently represented to this plaintiff that said switching charges were charged and collected by said company from each and every and all of the consignees receiving freight in car load lots over said Northern Pacific Railway Company’s line into Seattle ¡situated in all respects similar to this plaintiff, when in truth and in fact said defendant was absorbing or paying itself the said switching charges of many other consignees so situated as aforesaid and from same point or points in all respects similar to those from which plaintiff’s freight was shipped as aforesaid, and by means of said false and fraudulent representations by the said defendant, this plaintiff was induced to, and did, pay to the Columbia & Puget Sound Railway Co., between said times the sum of one thousand ninety and 50-100 ($1090.50) dollars, to the damage of this plaintiff in said sum.
“(5) That this plaintiff for the first time on or about, to wit, October &7th, 1909, discovered that the said representations, by and through which and by means of which the defendant caused this plaintiff to pay the sum of one thousand ninety and 50-100 ($1090.50) dollars as1 aforesaid were false and untrue, and by means of which tins plaintiff was damaged by an unjust and illegal discrimination in said sum of one thousand ninety and 50-100 ($1090.50) dollars.”
The first branch of the demurrer suggests the question whether the act to regulate commerce, and the acts amendatory thereof, enacted by the Congress of the United States, have taken away a shipper’s1 right to maintain an action in the state courts for unjust discrimination on the part of a common carrier of interstate commerce. We do not think that it did, or was so intended. While the ninth section of the act (U. S. Compiled Laws 1901, p. 3159) might seemingly confine the remedies for such a breach of duty to the commission provided for by the act, or to the district or circuit courts of the United States', the twenty-second section (Id., p. 3170-71), which was inserted to more clearly define the operation of the act, provides that “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.” This restriction on the prior provisions of the act makes it clear that the Congress did not intend to take away the jurisdiction of the state courts to maintain actions for breaches of dutjr in the carrier which would give rise to a cause of action at common law or under the state statute. Illinois Cent. R. Co. v. Henderson Elev. Co., 138 Ky. 220, 127 S. W. 779; Southern Pac. Co. v. Crenshaw, 5 Ga. App. 675. The common law, as administered by the American courts at least, gave a shipper a right of action against a common carrier for a discrimination in freight rates between the shipper and another similarly situated, whenever the effect of the discrimination was to injure
On the ¡second ground stated, the demurrer was properly sustained. It will be observed that the appellant does not allege that the carrier had not complied with the provision of the act to regulate commerce with reference to filing a schedule of rates, nor does it allege that by the rate charged it exceeded the rate shown on the schedule. Since there is no allegation of a violation of the law in these respects, it will be presumed there was no such violation. The allegation, therefore, that the respondent was absorbing or was itself paying the switching charges for many other consignors situated similarly to the appellant, must mean that these consignors were getting their freight hauled at less charge than the scheduled rate. In other words, the allegations in the complaint amount to an allegation to the effect that the respondent, under like circumstances and conditions, hauled freight for certain other persons at a less rate than its scheduled rate, and falsely and fraudulently represented to the appellant to the contrary. But clearly this alone does not state a cause of action, either at common law or under the statute. At common law, as we have shown, a shipper could recover for unjust and unreasonable discriminations only, when they operated to his injury. He could not recover damages because of the mere fact that the earner had carried freight for some other person at a less rate than he had been charged. All he could exact for himself was
The appellant’s complaint is based on the contrary assumption. He alleges that “many” consignors of freight procured their freight shipped without paying the additional switching charges complained of, and draws the conclusion, from that fact alone, that it can recover all of the switching charges it has paid on similar hauls for a series of years, regardless of the question whether it is specially damaged or not. If this doctrine be sound, any person who has shipped freight on a common carrier has a right of action against the carrier if he can find that the carrier has ever hauled freight of similar kind under similar circumstances for less charge than he paid for his own shipment. But the doctrine is not sound. It would allow a recovery by a private person where no injury is suffered, which is contrary to the first principles of justice.
The judgment is affirmed.
Dunbae, C. J., Mount, and Gose, JJ., concur.