Abilene Cotton Oil Co. v. Texas & P. Ry. Co.

• Decision Date: 25 February 1905
• Parties: ABILENE COTTON OIL CO. v. TEXAS & P. RY. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

85 S.W. 1052

ABILENE COTTON OIL CO. v. TEXAS & P. RY. CO.^*

Court of Civil Appeals of Texas.

February 25, 1905.

Appeal from District Court, Taylor County; J. H. Calhoun, Judge.

Action by the Abilene Cotton Oil Company against the Texas & Pacific Railway Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Hardwicke & Hardwicke, for appellant. T. J. Freeman and J. M. Wagstaff, for appellee.

CONNER, C. J.

Adopting the construction of the pleadings evidently given them in the briefs, and treating it as presented, the case, briefly stated, is an action by appellant for damages for a violation of an alleged common-law right, in that appellee demanded and coercively collected from appellant freight charges in excess of a reasonable compensation for the transportation of a number of car loads of cotton seed from the town of Cottonport, and other designated towns in the state of Louisiana, to the city of Abilene, in the state of Texas. It is averred that the rate actually demanded and received by appellee was 67 cents for each 100 pounds of cotton seed transported, which rate is alleged to have been unreasonable, unjust, and discriminative; that a reasonable charge and compensation for the service performed would have been the sum of the local rates, as established by appellee, from the several towns in Louisiana namd in the petition to the town of Alexandria, also in Louisiana, and from said Alexandria to said city of Abilene. The difference between the reasonable and unreasonable charges, as so stated, approximates 30 cents per hundred pounds of the shipments in question, and aggregates the sum of $1,951.83, which appellant seeks to recover. Appellee, in addition to certain exceptions which appear to have been waived by a failure to invoke action of the court thereon, pleaded the general denial, and specially to the effect that the shipment in question was an interstate one, and that the rate of 67 cents per hundred pounds charged was in accordance with the classification and schedules of rates theretofore duly filed in behalf of appellee with the Interstate Commerce Commission, and published and posted as required by the act of Congress generally known as the "Interstate Commerce Act." A jury was waived, and the trial court found as true, among other necessary things not necessary to here notice, the facts as alleged by the respective parties as hereinbefore generally stated, but concluded as a matter of law that the freight rate demanded and received by appellee was the only lawful rate it could have demanded and received, because of the fact that it was the rate fixed on the commodity in question, between the named points, in the classification and lists of freight rates that had theretofore been filed by appellee with the Interstate Commerce Commission, and promulgated, as alleged by appellee in its answer. Judgment was accordingly rendered for appellee, and hence this appeal.

We have stated the averments and facts very briefly, but we think enough has been stated to render it apparent that a very interesting and important question has been presented. That appellee is a common carrier for hire, that the points named are situated on its line of railway, as alleged, that cotton seed in quantity as alleged was transported as charged, and that a freight rate of 67 cents per hundred pounds was coercively demanded and received by appellee, are facts undisputed. Nor has appellee by any cross-assignment attacked the court's findings of fact to the effect that the rate charged was and is inherently unreasonable, unjust, and discriminative to the extent claimed by appellant. So that we are relieved from a consideration of the difficulties discussed in some of the cases in ascertaining the fact, and therefore now have squarely before us the questions whether in a state court a shipper in cases of interstate carriage can, by the principles of the common law, be accorded relief from unjust and unreasonable freight rates exacted from him, or shall relief in such cases be denied merely because such unreasonable rate has been filed and promulgated by the carrier under the interstate commerce act?

In undertaking to dispose of the questions presented, it may not be inappropriate to premise the statement that an unrestrained right, if any, to impose freight rates by common carriers engaged in interstate commerce, would include the right, in effect, to altogether deny to many citizens of the United States and territories the acquisition and use of many articles of commerce that in the development of the present age must be held to be necessaries. In some of the states and territories there are comparatively no manufactories; in others, no mines of coal, or of certain kinds of ore or useful metals; in yet others, an absence of certain agricultural or pastoral products; and the reciprocal exchange of these and other necessaries not only answers the actual necessities of the citizens in all parts of the American Union, but also seems essential to the proper development and power of our great nation. To deny such exchange is to paralyze industries in many mining, manufacturing, and commercial centers, and to unreasonably retard individual and national life. There seems, therefore, a necessity for some law that may be applied in some court to prevent unreasonable or prohibitive freight charges by those necessary factors of modern life—common carriers.

Pretermitting, for the moment, the question of the proper court in which it may be applied, we think the common law provides a remedy. In this state it is declared by express legislative enactment that the common law of England (so far as it is not inconsistent with the Constitution and laws of this state) shall, together with such Constitution and laws, be the rule of decision, and shall continue in force until altered or repealed by the Legislature. Rev. St. 1895, art. 3258. Mr. Hutchinson, in his work on Carriers (2d Ed., § 447), in discussing the amount of compensation to be allowed the common carrier for the transportation of goods in cases where the rate has not been fixed by statute, by established usage, nor by agreement of the parties, says that "the carrier will be entitled to demand and receive a reasonable compensation," and that, "further than that his charges shall be reasonable, the common law seems to have put no restrictions upon the carrier in respect to his demand for compensation." The Supreme Court of the United States, in Interstate Commerce Commission v. N. O. & T. P. Ry. Co., 167 U. S. 502, 17 Sup. Ct. 896, 42 L. Ed. 254, in speaking of freight charges by common carriers, makes use of the following terms: "For more than a hundred years it has been the affirmative duty of the courts to execute and enforce the common-law requirements that all charges shall be reasonable and just." And in the case of Western Union Telegraph Company v. Call Publishing Company, 181 U. S. 92, 21 Sup. Ct. 561, 45 L. Ed. 765, the same great court, in speaking of the common law, and in answering the contention that there was no common law that could be applied in the case before the court, say: "Can it be that the great multitude of interstate commercial transactions are freed from the burdens created by the common law, as so defined, and are subject to no rule except that to be found in the statutes of Congress? We are clearly of opinion that this cannot be so, and that the principles of common law are operative upon all interstate commercial transactions, except so far as they are modified by congressional enactment." See, also, Tift v. Southern Railway Company (C. C.) 123 Fed. 790. The foregoing citations, it seems to us, authorize the conclusion that the appellee, in demanding and...