Baltimore & O.S.W. Ry. Co. v. Shirk, No. 8293.

Docket NºNo. 8293.
Citation104 N.E. 864, 56 Ind.App. 42
Case DateApril 07, 1914
CourtCourt of Appeals of Indiana

56 Ind.App. 42
104 N.E. 864

BALTIMORE & O. S. W. RY. CO.
v.
SHIRK.

No. 8293.

Appellate Court of Indiana, Division No. 1.

April 7, 1914.


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.

[104 N.E. 865]


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.

FELT, J.

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...

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3 practice notes
  • May Department Stores Co. v. Union E.L. & P. Co., No. 34288.
    • United States
    • United States State Supreme Court of Missouri
    • June 30, 1937
    ...charges are not voluntary payments. Sonken-Galamba Corp. v. Ry. Co., 225 Mo. App. 1066, 40 S.W. (2d) 524; Baltimore, etc., Ry. v. Shirk, 104 N.E. 864; Sullivan v. Ry. Co., 121 Minn. 488; Clough v. Boston Ry. Co., 77 N.H. 222. (a) Utilities and their customers do not stand on the same plane ......
  • Sch. Town of Windfall City v. Somerville, No. 22,055.
    • United States
    • Indiana Supreme Court of Indiana
    • April 7, 1914
    ...the Legislature; that the ditch law made no compulsory provision for the payment of assessments except the sale of the property assessed; [104 N.E. 864]that therefore these considerations excluded any intention on the part of the Legislature to include the assessment of such lands in the ge......
  • Moody v. Stem, No. I616.
    • United States
    • United States State Supreme Court of South Carolina
    • December 30, 1948
    ...necessary to allege that plaintiff made a demand before suit for the return of the overcharge. Baltimore & O. S. W. Ry. Co. v. Shirk, 56 Ind. App. 42, 104 N.E. 864. If the plaintiff in the case at bar was induced to pay this overcharge by fraud or deception, there can be no doubt of his rig......
3 cases
  • May Department Stores Co. v. Union E.L. & P. Co., No. 34288.
    • United States
    • United States State Supreme Court of Missouri
    • June 30, 1937
    ...charges are not voluntary payments. Sonken-Galamba Corp. v. Ry. Co., 225 Mo. App. 1066, 40 S.W. (2d) 524; Baltimore, etc., Ry. v. Shirk, 104 N.E. 864; Sullivan v. Ry. Co., 121 Minn. 488; Clough v. Boston Ry. Co., 77 N.H. 222. (a) Utilities and their customers do not stand on the same plane ......
  • Sch. Town of Windfall City v. Somerville, No. 22,055.
    • United States
    • Indiana Supreme Court of Indiana
    • April 7, 1914
    ...the Legislature; that the ditch law made no compulsory provision for the payment of assessments except the sale of the property assessed; [104 N.E. 864]that therefore these considerations excluded any intention on the part of the Legislature to include the assessment of such lands in the ge......
  • Moody v. Stem, No. I616.
    • United States
    • United States State Supreme Court of South Carolina
    • December 30, 1948
    ...to allege that plaintiff made a demand before suit for the return of the overcharge. Baltimore & O. S. W. Ry. Co. v. Shirk, 56 Ind. App. 42, 104 N.E. 864. If the plaintiff in the case at bar was induced to pay this overcharge by fraud or deception, there can be no doubt of his right to ......

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