Baltimore & O.S.W. Ry. Co. v. Shirk
| Decision Date | 07 April 1914 |
| Docket Number | No. 8293.,8293. |
| Citation | 104 N.E. 864,56 Ind.App. 42 |
| Court | Indiana Appellate Court |
| Parties | BALTIMORE & O. S. W. RY. CO. v. SHIRK. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Lawrence County; Jas. B. Wilson, Judge.
Action by Elbert W. Shirk against the Baltimore & Ohio Southwestern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.W. R. Gardiner, C. K. Tharp, and C. G. Gardiner, all of Washington, and R. N. Palmer, of Bedford, for appellant. Brooks & Brooks, of Bedford, for appellee.
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 said 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 errors. 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 for excessive damages. The case was tried on an agreed state of facts.
[1] 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 et al. v. Creek, 47 Ind. App. 541, 94 N. E. 416;Reister v. Bruning, 47 Ind. App. 570, 94 N. E. 1019; 6 Cyc. p. 498; Cullen v. Seaboard, etc., R. Co., 63 Fla. 122, 58 South. 182; W. Va. Transportation Co. v. Sweetzer, 25 W. Va. 434-464. See, also, La Floridienne, etc., v. Atlantic, etc., R. Co., 63 Fla. 208, 58 South. 185.
[2] 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 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 tort-feasors 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 50 cents per ton, which was mutually prorated by said railway companies. On that date said railway companies raised the rate to 75 cents per ton, and said cement company thereupon appealed to the Railroad Commission of Indiana, which fixed the rate at 50 cents per ton effective September 19, 1907. Said railway companies had notice of the rate so fixed and ignored said order and continued to charge a rate in excess of that fixed by the commission, viz., 75 cents and 62 cents per ton, at different times. The Railroad...
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