Jones v. Alton & SR Co.

• Decision Date: 30 April 1934
• Citation: 6 F. Supp. 807
• Parties: JONES et al. v. ALTON & S. R. CO. et al.
• Court: U.S. District Court — Eastern District of Illinois

6 F. Supp. 807

JONES et al. v. ALTON & S. R. CO. et al.

District Court, E. D. Illinois.

April 30, 1934.

Jones, Grant & Jones, of Danville, Ill., for plaintiff.

Meeks & Lowenstein, and Gunn, Penwell & Lindley, all of Danville, Ill., for defendant.

LINDLEY, District Judge.

This action was brought by plaintiffs under section 16, par. 2, of the Interstate Commerce Act (49 USCA § 16 (2), to recover alleged unreasonable excesses of freight rates charged by defendants for the transportation of coal from certain districts in Illinois to Marshall, Mexico, and Vandalia, Mo., in violation of section 1 of the act (49 USCA § 1). The charges were made upon rates found by the Commission to be unreasonable in report No. 23424, Milton & Son et al. v. Alton & Southern Ry. Co. et al., 179 I. C. C. 200, decided November 23, 1931, which covered in all nine cases, and awarded to plaintiffs here, as wrongfully collected, freight charges of $8,777.72. To recover this amount with interest and attorneys' fees plaintiffs brought this suit.

Trial by jury was waived in writing, and at the conclusion of the evidence the court took the matter under advisement and has since received and considered voluminous briefs and arguments of the parties.

The defendants insist that assumpsit is not the proper form of action. Clearly under Lewis-Simas-Jones Co. v. Southern Pacific Co., 283 U. S. 654, 51 S. Ct. 592, 75 L. Ed. 1333, the collection by a common carrier of exorbitant charges is a tort.

It has always been the law in Illinois that one may waive a tort and elect to sue in assumpsit to recover money tortiously received or retained by defendant. Arnold v. Dodson, 272 Ill. 377, 112 N. E. 70; Donovan v. Purtell, 119 Ill. App. 116, affirmed 216 Ill. 629, 75 N. E. 334, 1 L. R. A. (N. S.) 176; Havana Press Drill Co. v. Ashurst, 148 Ill. 115, 35 N. E. 873. In Stewart v. Brady, 300 Ill. 425, 133 N. E. 310, 318, the court held that assumpsit was the proper form of action in suing to recover a statutory penalty for selling securities in violation of the state law. The court said: "An action of assumpsit will lie for money had and received for the use of the plaintiff, wherever, by reason of a contract relation, the defendant has obtained possession of money which in justice he ought to refund. Arnold v. Dodson, 272 Ill. 377, 112 N. E. 70. Assumpsit may be supported for money accruing due to the plaintiff under the provisions of a statute which does not restrict him to any other remedy."

In A. L. Jones Co. v. C., M. & St. P. Ry. Co., 213 Ill. App. 283, the court approved assumpsit as the proper pleading upon which to recover carrying charges in excess of those authorized by order of the Illinois Commerce Commission. Clearly plaintiffs are entitled to elect to maintain the present action in the form of assumpsit.

Defendants contend further that there is no proof of service of the order of the Commission directing the railroad to pay the said excessive charges required under the section which requires that every order of the Commission shall be served upon the designated agents of defendants in the city of Washington. See 49 USCA § 16 (5).

The evidence in the present case contains the certificate of the secretary of the Commission reciting the fact that service of the order was made on May 11, 1933, upon the Washington representative of defendants and that the receipts for same are now on file in the office of the Commission. It is contended that the certificate of any such ministerial officer proves only the document itself and that there is no competent evidence, therefore, to support a finding of proper service. However, this certificate was not offered to prove facts of record with the Commission, but, as I analyze the same, it was merely a certificate by a ministerial officer that he had performed a duty required of him by law. In other words, it was equivalent to the return of a marshal or sheriff on a subpœna or summons, made in the usual course of legal proceedings reciting service upon defendants. I am of the opinion, therefore, that there is sufficient proof of service.

It might well be observed in this connection that section 16, par. 5, of the act makes it mandatory upon the Commission to serve copies of orders upon parties in the proceeding before it and that many courts have held that, in the absence of evidence to the contrary, it is ordinarily presumed that public officers have performed the duties imposed upon them by law. U. S. v. Kinkead (D. C.) 248 F. 141, affirmed (C. C. A.) 250 F. 692; U. S. v. Chemical Foundation (D. C.) 294 F. 300, affirmed (C. C. A.) 5 F.(2d) 191; Williams v. Vreeland (C. C. A.) 244 F. 346, affirmed 250 U. S. 295, 39 S. Ct. 438, 63 L. Ed. 989, 3 A. L. R. 1038; Aldis v. South Park Com'rs, 171 Ill. 424, 49 N. E. 565; People ex rel. Stern v. E., J. & E. Ry. Co., 298 Ill. 574, 132 N. E. 204; Philadelphia & Reading Coal & Iron Co. v. Chicago, 158 Ill. 9, 41 N. E. 1102; Mix v. People ex rel. Shaw, 81 Ill. 118; Jackson v. Cummings, 15 Ill. 449; Village of Depue v. Banschbach, 273 Ill. 574, 113 N. E. 156.

The record further shows that defendants were served with the order in the Milton Case wherein it was found that petitioners were entitled to reparation and filed petition for rehearing on April 5, 1933, 33 days before the reparation order was issued, wherein they asked to have the matter reopened and reconsidered by the entire Commission on the question of reparation. A similar petition 25 days later asked for such reopening and for vacation of the order and for consideration by the entire Commission of the question of reparation. Apparently defendants had full notice of what the Commission was doing.

There is a special situation with regard to the Alton Railroad Company. The vice president of that company wrote to plaintiffs' representative on July 5, 1933, within three months after the orders of reparation were entered, saying that the only reason the company had for refusing at that time to pay the claims was that it was waiting for advice from counsel for the Missouri-Pacific as to proper basis for settlement. This clearly showed notice and waiver of any defect therein.

Defendants contend further that it was necessary that plaintiffs show that they had paid the alleged unreasonable charges under protest, and they rely in this connection upon the decision of the Circuit Court of Appeals for the Seventh Circuit, in Knudsen-Ferguson Fruit Co. v. C., St. P., M. & O. Ry. Co., 149 F. 973, where certiorari was denied by the Supreme Court, 204 U. S. 670, 27 S. Ct. 786, 51 L. Ed. 672. That case had to do with the cost of icing in transit. Plaintiff paid the demanded charge and then sued to recover it, and it was held that he could not recover because he had not paid the same under protest. This case was decided at a time when it was the practice to file suits in court without first obtaining a finding by the Commission.

It is further contended that the Supreme Court of the United States in Louisville & Nashville R. R. Co. v. United States, 267 U. S. 395, 45 S. Ct. 233, 69 L. Ed. 678, established the rule for all time that payment without protest cannot be collected. There the railroad company had filed suit to recover the amount by which the tariff rate charges on shipments of coal received by the United States as consignee were reduced by government land grant deductions, as contended, unlawfully. The court held that, same not having been paid under protest, it could not be recovered.

In reply to this contention plaintiffs very pertinently suggest that, in view of the fact that there is before the court no transcript of the record before the Commission upon which the order of reparation was based, but only the final order, it will be presumed that the Commission had before it all the facts necessary to make a valid award. Thus in Spiller v. A., T. & S. F. Ry. Co., 253 U. S. 117, 40 S. Ct. 466, 470, 64 L. Ed. 810, the court said: "Obviously we hardly could sustain a decision rejecting the reparation order upon the ground that there was not sufficient evidence before the commission to support it when the whole of the evidence that was before the commission was not produced."

The rule thus announced makes it unnecessary to pass upon the closely controverted question of whether payment under actual protest is necessary as a condition precedent to a successful action. In the eight cases involved in No. 23424, Milton et al. v. Alton & Southern, 179 I. C. C. 200, the Commission found the rates unreasonable, and thereafter in pursuance of the statute awarded the reparation now sought to be recovered on May 8, 1933. This finding and order of the Commission and service of notice of the same made out a prima facie case for plaintiffs entitling them to judgment unless legal defect is shown by the evidence.

The principal defense in this controversy is that the rates found unreasonable in the Milton Case and as to which reparation was awarded to plaintiffs had been previously approved by the Interstate Commerce Commission, and therefore the Commission could not properly award damages, in view of the holding of the Supreme Court in Arizona...