Baltimore And Ohio Southwestern Railway Co. v. Shirk
| Decision Date | 07 April 1914 |
| Docket Number | 8,293 |
| Parties | BALTIMORE AND OHIO SOUTHWESTERN RAILWAY COMPANY v. SHIRK |
| Court | Indiana Appellate Court |
From Lawrence Circuit Court; James B. Wilson, Judge.
Action by Elbert Walker Shirk against the Baltimore and Ohio Southwestern Railway Company. From a judgment for plaintiff the defendant appeals.
Affirmed.
W. R Gardiner, C. K. Tharp, C. G. Gardner, R. N. Palmer and Edward Barton, for appellant.
Brooks & Brooks, for appellee.
OPINION
Appellee as the receiver of the United States Cement Company, brought this action against appellant and the Southern Indiana Railway Company to recover excess freight charges paid to them as common carriers on certain shipments of coal made to said cement company. After the motion for a new trial had been overruled, it was shown that the appellee had personally succeeded to all the rights of the company held by him as receiver, and by agreement of the parties, he personally was substituted as plaintiff and judgment was rendered in his favor, and against appellant only, for $ 1,666.61. The complaint as originally filed consisted of two paragraphs. A demurrer for want of facts was sustained to the first and overruled as to the second.
Under the heading, "Errors relied upon for a reversal", appellant has stated a number of propositions that may be grounds for a new trial but not for independent assignment of error. The errors relied on that may be considered are the overruling of appellant's demurrer to the second paragraph of the complaint and the overruling of the motion for a new trial.
The briefs show that a new trial was asked on the ground that the decision of the court is contrary to law, is not sustained by sufficient evidence, and of excessive damages. The case was tried on an agreed state of facts. The only objection to the complaint is the failure to allege a demand before suit for the repayment to the plaintiff of the excess freight charged and collected by the railway company. The excess charge is alleged to have been unlawful and a demand before suit was not necessary. Jackson v. Creek (1911), 47 Ind.App. 541, 94 N.E. 416; Reister v. Bruning (1911), 47 Ind.App. 570, 94 N.E. 1019; 6 Cyc. 498; Cullen v. Seaboard, etc., R. Co. (1912), 63 Fla. 122, 58 So. 182; West Virginia Transportation Co. v. Sweetzer (1885), 25 W.Va. 434, 464; see, also, La Floridienne, etc., Co. v. Atlantic, etc., R. Co. (1912), 63 Fla. 208, 58 So. 185, 63 Fla. 212. But in any event the failure to allege demand, could not have harmed appellant in this case, for the agreed facts show that a demand was made.
The principal ground upon which a reversal is claimed is that the facts do not show that the excess rate was the the result of the joint and concurring acts of the two railroad companies over the lines of which the coal was shipped; that the facts do not show that appellant participated in making the rate that the Southern Indiana Railroad Company was the initial carrier and appellant simply received and forwarded the cars according to the charges made by that company; that the freight was voluntarily paid by appellant; that the shipping companies were not joint tortfeasors and no liability is shown against appellant. The facts essential to a decision of the questions involved are in substance as follows: For many years prior to this controversy, appellant and the Southern Indiana Railroad Company hauled coal over their lines from the Linton district in Indiana to the plant of the cement company near the city of Bedford; that the cars were received by the Southern Indiana Railway Company and shipped over its lines to Bedford, from which place they were taken by appellant over its lines to said plant, a distance of about two miles. Prior to August 12, 1907, the freight charge for such shipments was fifty cents per ton which was mutually prorated by said railway companies. On that date, the railway companies raised the rate to seventy-five cents per ton, and the cement company thereupon appealed to the Railroad Commission of Indiana, which fixed the rate at fifty cents per ton, effective September 19, 1907. The railway companies had notice of the rate so fixed and ignored the order and continued to charge a rate in excess of that fixed by the commission, viz., seventy-five cents and sixty-two cents per ton, at different times. The Railroad Commission then brought suit to enjoin the railway companies from violating its order, in which suit it was successful. An appeal was taken to the Supreme Court where the action of the commission was sustained. Southern Ind. R. Co. v. Railroad Com., etc. (1909), 172 Ind. 113, 87 N.E. 966. For forty-nine...
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