Hardaway v. Southern Ry. Co.

Decision Date02 March 1912
Citation73 S.E. 1020,90 S.C. 475
PartiesHARDAWAY v. SOUTHERN RY. CO.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Cherokee County; Robt. Aldrich, Judge.

"To be officially reported."

Action by B. H. Hardaway against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Sanders & De Pass, for appellant. Butler & Hall, for respondent.

HYDRICK J.

The facts out of which this action arose, briefly stated, are as follows: On December 5, 1908, plaintiff delivered to the Chattahoochee Valley Railway Company, at Langdale, Ala., two car loads of extra large and long timbers for transportation to Kings Creek, S.C. The shipment passed over the line of an intermediate carrier, and was delivered to defendant at Atlanta, Ga., and was carried by defendant to destination. The initial carrier issued a through bill of lading, in which the shipment was classed as lumber, and according to plaintiff's testimony, the general manager of that road quoted plaintiff the rate on lumber from Langdale to Kings Creek before the shipment was delivered to it. For the service, defendant demanded at destination, and plaintiff paid, the rate on a contractor's outfit, which amounted to $143.92 more than the rate on lumber, and this action was brought to recover that amount. The defendant demurred to the jurisdiction of the court on the ground that the interstate commerce act vests in the Interstate Commerce Commission and the federal courts exclusive jurisdiction of actions to recover overcharges on interstate shipments. The court overruled the demurrer. The exceptions assigning error in doing so will be disposed of first.

There was no contention as to the reasonableness of the rate either on lumber or on a contractor's outfit. Nor did the plaintiff contend that defendant was bound by the classification of the shipment made in the bill of lading. But his contention was that he was made to pay the rate on a contractor's outfit, when the shipment actually consisted of lumber. The timbers had been parts of a derrick which plaintiff had used in his business, and holes had been bored in them for the insertion of iron pins and bolts in the construction of the derrick, and the ends of some of them had been rounded and banded with iron. But, according to plaintiff's testimony, he had been shipping such timbers for years as lumber, by agreement with the railroad companies--the defendant among them--the only condition being that all irons should be removed from them, which his testimony tended to show had been done in this instance though it was contradicted by some of defendant's witnesses. Plaintiff's testimony also tended to show that when the irons were removed from the timbers, they were worth no more than so much new timber or raw material; that whenever they were used again, they were reworked, and the old holes were not utilized; and that he would not have shipped them at the rate on a contractor's outfit, because it would have been cheaper for him to buy new timbers.

There can be no doubt that, if the shipment was properly classed as a contractor's outfit, defendant was not only entitled to charge and collect the established rate on that class of freight, if it had proved the filing and publication of the schedule of rates in compliance with the interstate commerce act, but it was bound, under heavy penalty, to do so, and that without regard to any agreement between the shipper and the carrier as to the rate or classification whether stipulated in the bill of lading or not. Gulf, etc., R. Co. v. Hefley, 158 U.S. 98, 15 S.Ct. 802, 39 L.Ed. 910; Texas, etc., R. Co. v. Mugg, 202 U.S. 242, 26 S.Ct. 628, 50 L.Ed. 1011.

On the contrary, if it was lumber, the defendant had no right to demand more than the schedule rate on lumber, and anything which plaintiff was required to pay in excess of that rate was an illegal and unwarranted exaction, which plaintiff had the right to recover, because such exaction was not only in violation of the law, but also of the contract alleged to have been made with plaintiff.

There was testimony tending to show that the rate quoted plaintiff on lumber was the rate agreed upon between defendant and its connecting carriers in a joint schedule of rates filed with the Interstate Commerce Commission, and therefore that the initial carrier had authority under the common law to bind defendant in quoting the rate. Without proof of some authority given the initial carrier, the defendant would not have been bound even under the common law by the rate quoted the plaintiff by the initial carrier. Smith v. Southern Ry. Co., 89 S.C. 415, 71 S.E. 989. But there was no contention as to the correctness of the rate quoted on lumber or the rate collected on a contractor's outfit. The issue was: To which class did the shipment belong?

Upon these facts and circumstances alleged in the complaint, and established prima facie, at least, by the testimony, it cannot be denied that plaintiff had a cause of action against defendant at common law; and the action is, in fact, brought under the common law, and not under the interstate commerce act, either for damages for violation of that act, or upon any right or cause of action created thereby. Therefore, by the express terms of that act, the jurisdiction therein conferred upon the commission and the federal courts is cumulative and not exclusive, for in section 22 we read: "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 M., K. & T. Ry. Co. v. New Era Milling Co., 79 Kan. 435, 100 P. 273, the Supreme Court of Kansas held that the state court had jurisdiction of an action to recover excessive charges on an interstate shipment when the plaintiff did not rely upon the interstate commerce act, but based his claims upon the principles of the common law. The same principle is held in Gulf, etc., R. Co. v. Moore, 98 Tex. 302, 83 S.W. 362, 4 Ann. Cas. 770. In Judson on Interstate Commerce, § 44, the author says: "In suits brought for the enforcement of rights in interstate commerce, and not for the specific enforcement of the provisions of the interstate commerce act, or the anti-trust act, the state courts have concurrent jurisdiction with the federal courts. *** The fact that interstate commerce is beyond state legislative control does not ipso facto prevent the courts of the state from exercising jurisdiction over cases growing out of that commerce." Again, at section 248, he says: "The exclusiveness of the jurisdiction over suits brought under these remedial sections of the act to enforce its provisions must be distinguished from the concurrent jurisdiction of the state court over the questions in interstate commerce not arising or based upon the act."

The allegation in the complaint in this action that the classification and rate agreed upon and stipulated in the bill of lading were in conformity with the classification and rate filed with the Interstate Commerce Commission was not made to bring the action under the interstate commerce act, but to lay the foundation to recover the penalty provided by the statute of this state against carriers for failing to settle their freight charges according to the rate stipulated in the bill of lading, provided the rate therein stipulated is in conformity with the classification and rate filed with the Interstate Commerce Commission (24 Stat. 81); and therein lies the difference between our statute and the statute of Texas, which was held in the Hefley Case, supra, to be in conflict with the state commerce act, because it undertook to compel the carrier to settle according to the rate stipulated in the bill of lading, regardless of whether it was the rate filed with the commission or not.

In Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, 9 Ann. Cas. 1075, the oil company sued the railroad company in the state court to recover an amount alleged to have been charged and collected on interstate shipments in excess of a reasonable rate. The rate collected by the carrier was that stated in the schedule of rates filed with the Interstate Commerce Commission and published according to the requirements of the interstate commerce act. The question was whether the state had jurisdiction to grant relief upon the finding that the rate charged was unreasonable. The Supreme Court of the United States held that it did not, and rested its conclusion upon the ground that, if jurisdiction were conceded to the state courts in such cases, it might prove destructive of the act the main object of which was to establish just and reasonable rates and to prevent unjust preferences and discriminations, because, said the court, the diversity of decision in the courts as to what rates are reasonable might result in establishing the very preferences and discriminations which the act was designed to prevent. Therefore the only reasonable and logical conclusion was, as is clearly and cogently pointed out in the opinion, that the courts had no jurisdiction to determine the reasonableness of a rate, in anticipation of the action of the commission. We see nothing in the Abilene Case which is inconsistent with the jurisdiction of the state court in this case, for clearly there is not in this case any question as to the reasonableness of any rate. On the contrary, we find in that case a clear intimation in support of the jurisdiction of the state court in a case like this. In discussing the provisions of section 22 of the interstate commerce act, hereinbefore quoted, after having pointed out that the concessions of jurisdiction in the courts to...

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