194 Pa. 47 | Pa. | 1899
Opinion by
The appellants insist that they ought to recover back excessive tolls collected from them by the appellee, and their right to do so depends upon the facts developed on the trial. It seems that for a number of years the Monongahela Navigation Company, under its corporate power to charge and receive “ such rates of toll and charges as shall be just and reasonable,” had adopted a schedule for coal and slack, the rate for the latter being one half of that charged for the former. Some years ago the shippers — among them the appellants — began to ship the coal as it came from the mine, forming one mass and known as run of mine coal, which had previously been separated into coal and slack. Upon such shipments the Monongahela Navigation Company charged the full coal rate, and the shippers, alleging and having shown on the trial that two fifths of the run of mine coal was slack, insisted that they ought to be charged for it one half of the rate fixed for coal, or for the whole shipment but four fifths of the coal rate. A number of cases were tried together, five in which the Monongahela Navigation Company was plaintiff seeking to recover unpaid tolls, and two in which the shippers, as plaintiffs, sought to recover back excessive charges paid. The specifications of error involve but the single question of the right of the shippers to recover back excessive tolls collected from them, and we have reviewed all the testimony taken on the joint trial in considering and determining whether any error was committed by the learned trial judge in his instructions to the jury, which alone are assigned as error. These instructions were that the shippers could not recover back the tolls alleged to have been illegally paid, either in a
The jury found that the tolls charged were unreasonable, and so far as they had not been paid, proper allowance was made to the shippers in each case. Ought they to recover back what they had paid ? This depends upon the conditions under which the tolls or charges were paid. The appellants in every instance claimed the tolls as a matter of right. It is true that complaint was made from time to time that the charges were excessive and discriminating, and that other rates ought to be fixed. Disputes were continuous over the tolls exacted, and demands were made for modifications, but in every instance the company insisted upon its right to demand and receive what was paid, and no notice was ever given at the time of payment that the rates charged were illegal and that they were involuntarily paid. In Peebles v. City of Pittsburg, 101 Pa. 304, our Brother Green held that “ where there is compulsion, actual, present, potential in inducing payment by force of process available for instant seizure of person or property, and the demand is really illegal, then the party by giving notice of the illegality and of his involuntary payment can recover back the money so paid in an action brought for that purpose.” This in express terms was reaffirmed in Harvey v. Girard National Bank, 119 Pa. 212. If the shippers had insisted that illegal tolls were being exacted from them, as the jury subsequently found, and that they paid the same involuntarily, under protest, for the purpose of having their coal pass through the locks, they could have recovered any excess paid. In protesting, some notice ought to have been given, formal or informal, that the amount paid would be reclaimed. We have failed to discover that in any case, either when the tolls were paid or at any other time, notice was served upon the company that the shipper would demand repayment of the excessive amount paid. As we have not been persuaded that there is any error in the instructions complained of, but, on the other hand, after a careful review of all the testimony, feel that what was said to the jury was proper, all the assignments of error are overruled and the judgment is affirmed.
