98 Kan. 478 | Kan. | 1916
The opinion of the court was delivered by
An opinion was delivered in this case on January 8, 1916, but has not been officially published. The plaintiff filed a motion for a modification of the opinion. The defendant filed a motion for a rehearing. A rehearing was granted.
In this action the plaintiff recovered judgment against the defendant in the sum of $3076.20 for repairing cars furnished the plaintiff by the defendant in which to ship grain. The defendant appeals.
The action was begun February 25, 1913. Between December 7, 1908, and May 15, 1911, the plaintiff received from the defendant 5127 cars in which to ship bulk grain. All these cars were used in interstate shipments. Before loading the cars it was necessary for the plaintiff to repair them to prevent grain leaking therefrom. The petition asked for 80 cents for repairing each car. The jury allowed 60 cents for material and labor. From December 3, 1908, to December 28, 1910, the defendant’s tariff contained the following provision:
“When cars furnished by carriers named below for grain or other loading require repairing in order to insure against leakage in transit, and material necessary for this repair is furnished by the shipper, the carrier will pay the actual cost of the same, but not to exceéd eighty cents per car.”
On December 28, 1910, the tariff was amended to read:
“When cars furnished for bulk grain or other bulk freight loading require repairing in order to insure against leakage in transit, and the*480 material necessary for repairing is furnished by the shipper, the line furnishing the car will pay for the cost of the repairs, but not to exceed eighty cents per car.”
During all of the times of the transactions involved in this action the tariff contained this provision:
“When cars furnished for grain or other loading requiring interior doors are-not so equipped by the railroad company, and such .doors are furnished by the shipper, the actual cost thereof, but not to exceed $1.20 per car, will be paid by the carrier.”
During this time Rule 78 of the interstate commerce commission was in effect. This rule is:
“A carrier may not lawfully reimburse shippers for the expense incurred in attaching grain doors to box cars unless expressly so provided in its tariff.” (Conference Rulings, Bulletin No. 2.)
Section 8 of the interstate commerce act reads:
“That in case any common carrier subject to the provisions of this act shall do, cause to be done, or permit to be done any act, matter, or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this act required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this act, together with a reasonable counsel or attorney’s fee, to be fixed by the court in every case of recovery, which attorney’s fee shall be taxed and collected as part of the costs in the case.” (24 U. S. Stat. at Large, ch. 104, p. 379.)
Section 9 in part reads:
“That any person or persons claiming to be damaged by any common carrier subject to the provisions of this Act may either make complaint to the Commission as hereinafter provided for, or may bring suit in his or their own behalf for recovery of the damages for which such common carrier may be liable under the provisions of this Act, in any district or circuit court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt.”
“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.”
In Penna. R. R. v. Puritan Coal Co., 237 U. S. 121, 35 Sup. Ct. Rep. 484, 59 L. Ed. 867, the court said:
“Construing §§ 8 and 22, however, in connection with the statute as a whole, the Act to Regulate Commerce is both declaratory and creative, and while shippers are given new rights, existing causes of action are preserved and the jurisdiction of state courts is not superseded, in cases in which the decision does not involve the determination of matters calling for the exercise of administrative power and discretion of the Commission or relate to subjects over which exclusive jurisdiction is given to the Federal courts.
“While the Federal courts may have exclusive jurisdiction of a suit brought to declare that a rule of practice promulgated by the carrier is-unfair, a suit for damages occasioned by the violation or discriminatory-enforcement of the carrier’s rule, fair on its face and not attacked as unfair, does not involve administrative questions but only those of fact; and even though for damages arising in interstate commerce, such a suit is not within the exclusive jurisdiction of the Federal courts, but may be prosecuted either in those courts or in the state courts.” (Syl. ¶[¶ 2, 8.)
This principle was recognized and followed in III. Cent. R. R. v. Mulberry Coal Co., 238 U. S. 275, 35 Sup. Ct. Rep. 760., 59 L. Ed. 1306.
In Penna. R. R. v. Clark Coal Co., 238 U. S. 456, 35 Sup. Ct. Rep. 896, 59 L. Ed. 1406, the method or rule for the distribution of cars to coal-mining companies was called in question. In the syllabus to this case we find this language;
“Whether the rule or method of car distribution for mines furnishing1 coal f. o. b. at the mines for shipment to other States as practiced by a railroad company is unjustly discriminatory is one which the Interstate Commerce Commission has authority to pass upon.
“Where the complaint involves an attack upon the rule or method of car distribution practiced by the carrier in distributing cars for interstate shipments, no action is maintainable in any court for damages alleged to have been inflicted thereby until the Commission has made its-finding as to the reasonableness of such rules and methods.” (Syl. ¶¶3,4.)
The fact that the shipper in Penna. R. R. v. Clark Coal Co. appealed to the interstate commerce commission for relief against the rule was taken into consideration by the court.
The defendant- cites Loomis v. Lehigh Valley R. R., 240 U. S. 43, decided by the United States supreme court January 24, 1916, as showing conclusively that the questions in the case now before this court can not be determined by a state court. That was a case involving the repairing of cars furnished for the shipment of wheat, oats, rye, apples, cabbage, and potatoes. Prior to 1906 cars had been furnished the plaintiffs and lumber had been supplied without charge, for the construction of inside doors and transverse bulkheads. In 1906 the practice of furnishing lumber was discontinued and the defendant refused to supply material for fitting the cars or to furnish cars completely repaired for carrying in bulk the articles enumérated. The plaintiffs constructed the inside doors and bulkheads in the cars and brought an action to recover the cost of the material used. The court said:
“An adequate consideration of the present controversy would require acquaintance with many intricate facts of transportation and a consequent appreciation of the practical effect of any attempt to define services covered by a carrier’s published tariffs, or character of equipment which it must provide, or allowances which it may make to shippers for instrumentalities supplied and services rendered. In the last anaylsis the instant cause presents a problem which directly concerns rate-making and is peculiarly administrative. Atchison, Topeka & Santa Fe Ry. v. United States, 232 U. S. 199, 220. And the preservation of uniformity and prevention of discrimination render essential some appropriate ruling by the Interstate Commerce Commission before it may be submitted to a court. See Penna R. R. v. Puritan Coal Co., 237 U. S. 121, 128, 129; Penna. R. R. v. Clark Coal Co., 238 U. S. 456, 469, 470.” (p. 50.)
In the case now before this court no attack is made on the defendant’s tariff or rules embraced therein concerning the cooperage of cars. The plaintiff seeks to recover what the defendant says by its tariff it- will pay. There is a dispute concerning the meaning of the tariff. Is it necessary that this dispute be presented to the interstate commerce commission before the plaintiff can recover what the tariff says the defendant will pay? Every contract, every writing, every law, so far as its meaning is concerned, may be, and often is, a subject of dispute, even when there should be no dispute. Tariff
The judgment is reversed and the cause is remanded for a' new trial.