73 S.E. 1020 (S.C. 1912), Hardaway v. Southern Ry. Co.

Citation73 S.E. 1020, 90 S.C. 475
Opinion JudgeHYDRICK, J.
AttorneySanders & De Pass, for appellant. Butler & Hall, for respondent.
Case DateMarch 02, 1912
CourtSupreme Court of South Carolina

Page 1020

73 S.E. 1020 (S.C. 1912)

90 S.C. 475




Supreme Court of South Carolina

March 2, 1912

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.

Page 1021

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


The facts out of which this action arose, briefly stated, are as follows: [90 S.C. 477] 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

Page 1022

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 [90 S.C. 479] 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...

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