Baltimore And Ohio Southwestern Railway Company v. New Albany Box And Basket Company
| Decision Date | 25 April 1911 |
| Docket Number | 7,219 |
| Citation | 94 N.E. 906,48 Ind.App. 647 |
| Parties | BALTIMORE AND OHIO SOUTHWESTERN RAILWAY COMPANY v. NEW ALBANY BOX AND BASKET COMPANY |
| Court | Indiana Appellate Court |
Rehearing denied October 13, 1911, Reported at: 48 Ind.App 647 at 657. Transfer denied November 17, 1911.
From Floyd Circuit Court; William C. Utz, Judge.
Action by the Baltimore and Ohio Railway Company against the New Albany Box and Basket Company. From a judgment for defendant plaintiff appeals.
Reversed.
Charles L. Jewett, Henry E. Jewett, Edward Barton and R. S. Allen, for appellant.
A. Dowling, for appellee.
This action was brought by appellant against appellee to recover an unpaid balance of certain freight charges, alleged to be due to appellant for transporting a carload of nested baskets for appellee from New Albany, Indiana, to Hudson, New York.
The amended complaint is in one paragraph, and states that prior to April 7, 1905, plaintiff was, and since said date has been, a railroad corporation, owning and operating a line of steam railroad extending through the states of Illinois, Indiana and Ohio, and, in conjunction with connecting carriers, is engaged in interstate commerce between New Albany, Indiana, and Hudson, New York; that prior to April 7, 1905, plaintiff and its connecting carriers, in compliance with the statutes of the United States, commonly known as the "Interstate Commerce Law," had established and published official tariffs of the rates to be charged for transporting goods and merchandise from New Albany, Indiana, to Hudson, New York; that said tariffs had been duly published and filed with the Interstate Commerce Commission, and were kept on file in the office of plaintiff at New Albany, Indiana, accessible to, and for the information of, shippers and of defendant; that on April 7, and during the performance of the services hereinafter named, said rates were in full force, and bound plaintiff and connecting carriers to the rate therein fixed for the transportation of merchandise between the points named; that the rate so fixed and in force at the time, to be charged for the transportation of one carload of nested baskets from New Albany, Indiana, to Hudson, New York, was $ 114; that defendant was engaged in manufacturing nested baskets at New Albany, Indiana, and shipping them by rail to points in other states in carload lots; that it had a selling price for its baskets, and, by its method of doing business, fixed the price at which it would sell and deliver a carload of its product to a given purchaser by adding to the selling price the freight to be charged for transportation from New Albany to destination, and quoting the aggregate as its price free on board at destination; that when the cars arrived at destination the consignee paid the freight charges, and remitted the balance of said price to defendant in full settlement; that on said April 7, 1905, defendant had an order for a carload of nested baskets to be delivered to A. W. Ham, Hudson, New York, and applied to plaintiff's agent at New Albany, Indiana, for information as to the charge for transporting a car from New Albany to Hudson; that by mistake and inadvertence of said agent defendant was informed that the rate was $ 68.40, instead of $ 114, the fixed and lawful rate; that defendant did not examine the tariffs for itself, but acted upon the statement of said agent, and quoted and shipped a carload of baskets at a price based on the erroneous statement of the rate; that the car was received by plaintiff, and transported over its line and the lines of connecting carriers to Hudson, New York, and there delivered to said A. W. Ham, upon the payment by him of $ 68.40, as the full freight charges; that plaintiff's other agents, and those of its connecting carriers, participated in and perpetuated the mistake of the agent at New Albany as to the rate, and not until after the goods had been delivered was it discovered that an illegal rate had been charged; that on September 9, 1907, plaintiff and its connecting carriers notified said A. W. Ham that said car had been transported at less than the lawful rate, and demanded that he pay the sum of $ 45.60, which he refused to do; that on December 6, 1907, plaintiff likewise notified defendant and demanded that it pay said balance of $ 45.60, which defendant refused and still refuses to pay; that said sum of $ 45.60, with interest from April 7, 1905, is due and wholly unpaid. Judgment is demanded in the sum of $ 55.
To this amended complaint defendant filed its demurrer, on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained defendant's demurrer, and, plaintiff electing to abide by its amended complaint and its exception to the ruling of the court in sustaining the demurrer thereto, final judgment was rendered against it, that it take nothing by its complaint, and that defendant recover its costs.
The amended assignment of errors sets out six separate specifications, the first of which is that the court erred in sustaining defendant's demurrer to plaintiff's amended complaint. The remaining specifications of error are included in the first.
Amended section six of the interstate commerce act reads as follows: 34 Stat. 586, U.S. Comp. Stat. Supp. 1909, 1153.
It is urged that no cause of action is stated against appellee, for the...
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