American Express Co. v. Southern Indiana Express Co.
| Decision Date | 01 November 1906 |
| Docket Number | 20,441 |
| Citation | 78 N.E. 1021,167 Ind. 292 |
| Parties | American Express Company v. Southern Indiana Express Company |
| Court | Indiana Supreme Court |
From Lawrence Circuit Court; James B. Wilson, Judge.
Suit by the Southern Indiana Express Company against the American Express Company. From a decree for plaintiff, defendant appeals.
Affirmed.
Matson & Giles and Baker & Daniels, for appellant.
F. M Trissal, J. H. Shea and Brooks & Brooks, for appellee.
Jordan C. J. Montgomery, J., did not participate in this decision.
Appellee company, as plaintiff below, on May 31, 1901, commenced this suit under an act of the legislature, approved March 7, 1901 (Acts 1901, p. 149, §§ 1, 4, §§ 3312b, 3312e Burns 1901), to secure an injunction compelling appellant to extend to said plaintiff like facilities, terms, privileges, advantages, and usages in the receiving, transmission and delivery of express matter within the State of Indiana which said defendant had granted to all other express companies.
On May 12, 1902, plaintiff filed an amended complaint in two paragraphs. The defendant unsuccessfully demurred to each of these paragraphs on the grounds: (1) That the court had no jurisdiction over the person of the defendant; (2) that the plaintiff had no legal capacity to sue; (3) that the paragraphs did not state facts sufficient to constitute a cause of action. Thereupon defendant filed its answer in five paragraphs, the first of which was the general denial. A demurrer for want of facts was sustained to each of the paragraphs of the answer except the first. On February 19, 1904, the cause was tried by the court on the issues joined upon the amended complaint and the answer of general denial. There was a general finding in favor of the plaintiff, and the court awarded a decree, enjoining and prohibiting the defendant from refusing to extend and grant unto the plaintiff equal terms, facilities, accommodations, usages, privileges, and advantages in the receipt, transmission, carriage, continuance of carriage, and delivery of money and property, which defendant extended and granted to other express companies; but the court excluded from the operation of said decree of injunction property worth less than the transportation charges and also perishable property.
Upon the entering of this decree the defendant filed a motion to modify. This motion is as follows:
The defendant also filed its motion for a new trial, assigning the following reasons: "(1) That the decision of the court is not supported by sufficient evidence; (2) that the decision of the court is contrary to law." Each of these motions was overruled, to which rulings the defendant excepted.
The errors assigned in this appeal, and upon which appellant relies for reversal, are the following: (1) The amended complaint does not state facts sufficient to constitute a cause of action; (2) overruling the demurrer to the first paragraph of the amended complaint; (3) overruling the demurrer to the second paragraph of said complaint; (4) sustaining demurrer to the second paragraph of answer; (5) sustaining demurrer to the third paragraph of answer; (6) sustaining demurrer to the fourth paragraph of answer; (7) sustaining demurrer to the fifth paragraph of answer; (8) overruling motion to modify decree; (9) overruling motion for new trial.
The evidence given upon the trial is brought into the record by a bill of exceptions.
Plaintiff alleged in the first paragraph of its amended complaint that it is a corporation organized and doing business under the laws of the State of Indiana; that for three years last past it has been engaged in the business of carrying money, merchandise and other articles over the Southern Indiana Railroad Company's line in Indiana; and since May 16, 1901, up to the present date it received and agreed to receive compensation for such services; that since then continuously it has been engaged in consigning to defendant and other express companies such things so carried by it for transportation by such express company over railroads in the State of Indiana; that during all the time mentioned it has been and still is a responsible express company; that on May 16, 1901, it had and now has a paid-up cash capital of $ 50,000, and no liability existing against it. It is alleged that it is a joint stock association, and for twenty years last past has been engaged in the State of Indiana in carrying, over railroads, money, merchandise, and other articles for hire; that said defendant is and during all of said time has been granting to the Adams Express Company, the Southern Express Company, and other express companies, facilities, accommodations, and usages in the receipt, carriage, continuance of carriage, and delivery of such express matter, and terms, credits, advantages, and usages in the receipt, transmission and delivery of such express matter which the defendant has continuously refused, and still refuses, to the plaintiff; that said advantages consist in the defendant's maintaining business connections with such other express companies, whereby said defendant received from them, and they received from defendant, express packages and each paid the carrying charges of the preceding carrier, and each completed the carriage and delivered such articles and collected from the consignee and retained all the charges of itself and of each preceding carrier.
The first paragraph further alleges that the plaintiff continuously and daily from May 16, 1901, tendered to the defendant express matter to be received and accepted by said defendant under equal terms and under the terms, credits etc., in the receipt, transmission, and delivery of all express matter at all of said times granted by the defendant to said other express companies; that the defendant has refused to receive said packages, and by so refusing, unlawfully and unjustly discriminates against this plaintiff. The paragraph then sets out and assigns three specific instances of packages of express matter tendered and refused on May 30, 1901, to wit: (1) A package from Seymour, Indiana, consigned to Edward Corr, of Bloomington, Indiana, and carried by plaintiff to Bedford, and there tendered to the defendant, which the latter refused to receive and accept. (2) A package from Freetown, Indiana, consigned to Noble Moore, at Mitchell, Indiana, which was carried by plaintiff to Bedford, and tendered to defendant, and by it refused. It is averred that defendant's line passes through Bloomington and Mitchell, Indiana. (3) A package from Selma, Indiana, consigned to Dr. W. H. Livingston, Danville, Indiana, and carried by plaintiff to Bedford, and at that point tendered to defendant and by it refused. That defendant's line extends from Bedford to Danville, Indiana, and that all the aforesaid packages were received by the plaintiff in the usual course of business. It is alleged that along plaintiff's line there are, and for months past have been, thirty stations where it has maintained agencies; that the railroad over which the plaintiff maintains its line is over 160 miles in length, and that at each of its said agencies said plaintiff has since May 16, 1901, daily received express packages which were consigned to persons in divers cities and towns in the State of Indiana, in which the defendant had and has agencies, and to which its line runs; that each day hereafter the plaintiff will receive packages along its line. It is further alleged that the defendant threatens to continue to refuse packages tendered to it by the plaintiff, will refuse to pay plaintiff's carrying charges, will refuse to complete the carriage of such packages, will refuse to receive from the consignee all the carrying charges, and will refuse to receive from plaintiff such packages and pay the carrying charges accrued thereon, unless enjoined from so doing; and that thereby the plaintiff will suffer irreparable injuries, the...
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