Anniston Mfg. Co. v. Southern Ry. Co.

• Citation: 145 Ala. 351,40 So. 965
• Parties: ANNISTON MFG. CO. v. SOUTHERN RY. CO.
• Decision Date: 21 December 1905
• Court: Supreme Court of Alabama

40 So. 965

145 Ala. 351

ANNISTON MFG. CO. v. SOUTHERN RY. CO.

Supreme Court of Alabama

December 21, 1905

Rehearing Denied April 3, 1906.

Appeal from City Court of Anniston; Thomas W. Coleman, Judge.

"To be officially reported."

Action by the Anniston Manufacturing Company against the Southern Railway Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

This was an action by appellant against appellee to recover certain alleged overcharges in freight for hauling coal to appellant at Anniston from the Birmingham district. The complaint contained four counts for money had and received by defendant to use of the plaintiff between March, 1899, and January, 1900, and between January 1, 1900, and January 1 1901, and during the year 1900, and from the 1st day of January, 1902, to the 1st day of February, 1903. Demurrers were overruled to these counts, and defendant filed the general issue; plea of the statute of limitation of three years to certain items and the statute of limitation of one year to certain items; that the amount claimed in each count is for money paid by plaintiff to the defendant on account of freight charges, and the defendant says that said payments were made without compulsion or duress had or exercised by the defendant over the plaintiff, and were made with the full knowledge of the fact in relation thereto; that each count claims money paid for alleged overcharges of freight on coal from points on defendant's line of railroad in what is known as the "Birmingham District" to the city of Anniston, Ala.; that heretofore, and prior to the accrual of said cause of action alleged in said count, the plaintiff made complaint to the Railroad Commission of Alabama against the defendant charging, and alleging that the rate of freight charged by the defendant on such coal shipments was exorbitant and constituted an unjust discrimination against the plaintiff; that upon a trial and hearing before said Railroad Commission it was held and decreed that the said rate of freight was not exorbitant, and was not an unjust discrimination against the plaintiff, and defendant avers that the said Railroad Commission of Alabama had jurisdiction to hear and determine the said complaint of plaintiff, and that its finding and decree that the said freight rate was not exorbitant or an unjust discrimination against plaintiff is a bar to the prosecution of plaintiff's alleged claim.

What occurred in reference to the bill of exceptions and the certiorari to bring up the other bill of exceptions and the matters inserted therein sufficiently appear in the opinion of the court. The trial court in its oral charge to the jury used the following language: "Plaintiff must prove to your reasonable satisfaction both that the rate was unreasonably high, and, further, plaintiff must prove with reasonable certainty what would be a reasonable rate, before plaintiff is entitled to recover. * * * The law gave the railroad the right to make a special rate to the iron industry." The plaintiff excepted to these parts of the oral charge. There were numerous other rulings on demurrers requested instructions, etc., not discussed in the opinion and therefore not necessary here to be set out. There was verdict and judgment for the defendant, and plaintiff appealed.

Blackwell & Agee, for appellant.

Knox Acker & Blackmon, for appellee.

ANDERSON J.

The bill of exceptions in this case sent up as the return to the writ of certiorari, being different from the one contained in the transcript as originally filed, must be regarded by us as the true and correct record. Alabama Great Southern R. R v. Dobbs, 101 Ala. 219, 12 So. 770; Pearce v. Clements, 73 Ala. 256. The bill of exceptions in the original transcript, as well as the one sent up as a return to the certiorari, each recites that it contains "subtantially all the evidence"; but they both recite that two certain opinions of the Railroad Commission were introduced in evidence. The last bill of exceptions does not set out said opinions, but recites that opinions of certain dates were introduced, and then instructs the clerk to set out one being of a different date. Should we be permitted under the rules to consider the two bills of exceptions in connection with each other, it would be of no benefit to the appellant, as the opinions as set out in the original record are not of the date as mentioned in either one as to the ones that were in fact introduced, and do not answer to the description of those ordered to be inserted. "It is a rule now inflexibly settled in our practice, by a long current of decisions, that this court will not establish a bill of exceptions, nor award a certiorari to bring it up as a part of the record, even if signed, where there are blanks in material parts of the instrument, and the papers intended to be inserted are not properly identified." Pearce v. Clements, ...