241 Pa. 536 | Pa. | 1913
Opinion by
These two appeals are from the same judgment, were argued together, and may be considered and disposed of in one opinion. While the record is voluminous, as suggested by the learned judge of the Common Pleas, and numerous assignments of error have been filed by both parties, we will consider, as the parties in their printed briefs have done, the questions presented without specific reference to the several assignments.
The action was trespass to recover damages for unlawful discrimination in freight rates which the plaintiff company, as a shipper of coal and coke, alleges it sustained by reason of the defendant carrier allowing secret rebates or drawbacks on intrastate shipments to other shippers of coal and coke for whom it rendered substantially the same service as was rendered to the plaintiff during the period of action, namely, from April
The referee found on ample testimony that the moneys paid by the defendant company to the favored shippers were unlawful rebates or drawbacks, and not, as claimed by it, compensation for use of their short line railroads or for services rendered by the shippers. This was a question of fact, and while the testimony was conflicting and a different finding might have been justified, the evidence was sufficient to warrant the referee’s conclusion and, therefore, we would be infringing a settled rule if we reversed the finding of the referee confirmed by the judgment of the court.
The plaintiff’s application to amend its statement was properly denied. The application was made about nine years after the close of the period of action, and more than five years after the suit was brought. The statement averred two specific charges of discrimination: (a) for the coal and coke shipped from Gallitzin between October, 1899, and May, 1901, the defendant company charged and collected from the plaintiff fifteen cents per ton more than it charged and collected from the Altoona, the Glen White, and the Millwood Companies; and (b) for the coal and coke shipped from five other collieries of the plaintiff and also from its Gallitzin mine before October, 1899, the defendant company charged and collected ten cents per ton more than it charged and collected from the Latrobe and Bolivar
The Practice Act provides that the declaration in an action of trespass shall consist of a concise statement of the plaintiff’s demand as provided in the Act of 1806 which requires that “the whole amount that he, she or they believe is justly due to him, her or them from the defendant” be specified. It will be observed that the statement in the present case declares for single damages in the sum named and that it contains no averment that the suit was brought under the Act of 1883 to recover treble damages. The statement avers the duty of the defendant as a common carrier to treat every shipper alike in fixing freight rates for the transportation of coal and coke under substantially similar circumstances and conditions, the failure to perform such duty during the period of action, sets out the discriminatory acts done by the defendant which the plaintiff company alleges constituted an unlawful and unreasonable discrimination against it as a shipper of coal and coke over the lines of the defendant’s railroad, and avers that by reason of the premises the plaintiff had been damaged in the aggregate sum of $93,905 payment of which was demanded and refused. An action of trespass at common law is brought to recover compensation for the injuries sustained and a statutory action is for the penalty imposed for the infringement of the statute. Where, therefore, suit is brought on a statute to recover double or treble damages we have regarded it as an action for a statutory penalty and required the cause of action as such to be averred in the statement: Hughes v. Stevens, 36 Pa. 320; Dunbar Furnace Company v. Fairchild, 121 Pa. 563; Fairchild v. Dunbar Furnace
We think the court below did not err in limiting the plaintiff’s right to recover to six years prior to the date the action was brought. The most that can be said for the testimony introduced by the plaintiff to toll the statute is that Mr. Joyce, the defendant’s coal freight agent, promised Mr. Mitchell that the plaintiff company should in the future receive as good treatment and rates as other shippers and should be notified if there were any additional concessions of any kind made to any shipper. These promises, it appears, were not kept, and preferential rates were given to some of plaintiff’s competitors. This was discreditable conduct on the part of the defendant company, and a plain violation of its duty as a common carrier. But it was simply a failure to observe a promise, and not fraudulent conduct, which prevents the running of the statute. As said by the learned trial judge: “No greater duty was imposed by the promise than the law imposed, but the breach was not a fraud or deceit or concealment in the sense contemplated by law, when it is sought to escape the operation of the statute of limitations.”
The shipments to Greenwich, Philadelphia, were intrastate, and hence were properly included in this action. They were consigned to plaintiff at Greenwich and there the contract of carriage between the plaintiff and the defendant was fully performed and ended. What disposition the plaintiff made of the shipments at Greenwich, whether it sold them or sent them within or beyond the State is immaterial as affecting the question whether as between the plaintiff and the defendant they were intrastate or interstate.
The learned referee has found after a careful and exhaustive consideration of all the testimony that the service rendered by the defendant to the favored shippers in the transportation of coal and coke for them upon which drawbacks or rebates were paid was a like service, from the same place, upon like conditions and under substantially similar circumstances and for the same period of time as the service performed for the plaintiff company in the transportation for that company of coal and coke upon which no drawback or rebate was paid. This finding was confirmed by the learned court below. We have examined with care the voluminous testimony and the authorities cited by the learned referee and by counsel of the parties and are satisfied that the court and referee reached a correct conclusion. Without taking up and discussing the testimony which was done in the elaborate report of the learned referee, it is sufficient to say that it was ample to sustain his findings on this branch of the case.
The learned court below points out in its opinion the facts which defeat the plaintiff company’s right to compensation for delay in payment of its claim.
We have examined the case with special reference to the several questions raised by all of the assignments filed by both appellants, and have discovered no error, which would justify a reversal of the judgment entered by the court below.
The judgment is affirmed.