Baltimore & O.S.W. Ry. Co. v. New Albany Box & Basket Co.

Decision Date25 April 1911
Docket NumberNo. 7,219.,7,219.
Citation94 N.E. 906,48 Ind.App. 647
CourtIndiana Appellate Court
PartiesBALTIMORE & O. S. W. RY. CO. v. NEW ALBANY BOX & BASKET CO.

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Floyd County; William C. Utz, Judge.

Action by the Baltimore & Ohio Southwestern Railway Company against the New Albany Box & Basket Company. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed, with instructions and for further proceedings.

Edward Barton, Robert S. Alcorn, Chas. L. Jewett, and Henry E. Jewett, for appellant. Alexander Dowling, for appellee.

ADAMS, J.

This action was brought by the appellant against the appellee to recover an unpaid balance of certain freight charges, alleged to be due appellant for transporting a car load of nested baskets for appellee from New Albany, Ind., to Hudson, N. Y.

The amended complaint is in one paragraph and states that, prior to the 7th day of April, 1905, and since said date, the plaintiffwas and 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, engaged in interstate commerce between New Albany, Ind., and Hudson, N. Y.; that, prior to the 7th day of April, 1905, the appellant and its connecting carriers had, in compliance with the statutes of the United States, commonly known as the “Interstate Commerce Law,” established and published official tariffs of the rates to be charged for transporting goods and merchandise from New Albany, Ind., to Hudson, N. Y.; that said tariffs had been duly published and filed with the Interstate Commerce Commission, and were kept on file in the office of the appellant at New Albany, Ind., accessible to, and for the information of, shippers and of appellee; that on said 7th day of April, and during the performance of the services hereinafter named, said rates were in full force, and bound the appellant 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 car load of nested baskets, from New Albany, Ind., to Hudson, N. Y., was the sum of $114; that the appellee was engaged in manufacturing nested baskets at New Albany, Ind., and shipping the same by rail to points in other states, in car load 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 car load of its product to a given purchaser, by the method of 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 would pay the freight charges and remit the balance of said price to appellant in full settlement; that on said 7th day of April, 1905, the appellees had an order for a car load of nested baskets, to be delivered to one A. W. Ham, at Hudson, N. Y., and applied to appellant's agent at New Albany, Ind., for information as to the charge for the transportation of a car from New Albany to Hudson; that, by mistake and inadvertence of the agent of appellant, appellee was informed that the rate was $68.40, instead of $114, the fixed and lawful rate; that appellee did not examine the tariffs for itself, but acted upon the statement of said agent, and quoted and shipped a car load of baskets at a price based upon the erroneous statement of the rate; that the car was received by appellant and transported over its line and the lines of connecting carriers to Hudson, N. Y., and there delivered to said A. W. Ham, upon the payment by him of $68.40, as the full freight charges; that appellant'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 it was not discovered, until after the goods had been delivered, that an illegal rate had been charged; that thereupon, on the 9th day of September, 1907, the appellant and its connecting carriers notified said A. W. Ham that said car had been transported at less than the lawful rate, and demanded of said Ham that he pay the sum of $45.60, which he refused to do; that on the 6th day of December, 1907, the appellant likewise notified the appellee, and demanded that they pay said balance of $45.60, which appellee refused and still refuses to pay; that said sum of $45.60, with interest from the 7th day of April, 1905, is due and wholly unpaid. Judgment is demanded in the sum of $55.

To this amended complaint, the appellee filed its demurrer upon the ground that the same did not state facts sufficient to constitute a cause of action. The court sustained the demurrer of the appellee, and, the appellant 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 the appellant that it take nothing by its complaint, and that the appellee recover its costs. The amended assignment of errors sets out six separate specifications, the first of which is that the court erred in sustaining the demurrer of the appellee to the amended complaint of the appellant. The remaining specifications of error are included in the first.

Amended section 6 of the interstate commerce act reads as follows: “That every common carrier subject to the provisions of this act shall file with the Commission created by this act and print and keep open to public inspection schedules showing all the rates, fares, and charges for transportation between different points on its own route, and between points on its own route and points on the route of any other carrier by railroad, by pipe line, or by water when a through route and joint rate have been established. If no joint rate over the through route has been established, the several carriers in such through route shall file, print and keep open to public inspection as aforesaid, the separately established rates, fares and charges applied to the through transportation. The schedules printed as aforesaid by any such common carrier shall plainly state the places between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately all terminal charges, storage charges, icing charges, and all other charges which the Commission may require, all privileges or facilities granted or allowed, and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such aforesaid rates, fares, and charges, or the value of the service rendered to the passenger, shipper or consignee. Such schedules shall be plainly printed in large type, and copies for the use of the public shall be kept posted in two public and conspicuous places in every depot, station or office of such carrier where passengers or freight, respectively, are received for transportation, in such form that they shall be accessible to the public, and can be conveniently inspected. *** No carrier, unless otherwise provided by this act, shall engage or participate in the transportation of passengers or property, as defined in this act, unless the rates, fares and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this act; nor shall any carrier charge or demand or collect or receive a greater or less or different compensations for such transportation of passengers or property, or for any service in connection therewith, between the points named in such...

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