Batesville Southwestern R. Co. v. Mims

• Decision Date: 22 May 1916
• Docket Number: 18099
• Citation: 111 Miss. 574,71 So. 827
• Court: Mississippi Supreme Court
• Parties: BATESVILLE SOUTHWESTERN R. CO. v. MIMS

71 So. 827

111 Miss. 574

BATESVILLE SOUTHWESTERN R. CO. v. MIMS

No. 18099

Supreme Court of Mississippi

May 22, 1916

APPEAL from the circuit court of Panola County, HON. E. D. DINKINS Judge.

Suit by M. H. Mims against Batesville Southwestern Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

Montgomery & Montgomery, for appellant.

James Stone and Woods & Kuykendall, for appellee.

OPINION

SYKES, J.

M H. Mims, appellee, plaintiff in the court below, filed his declaration in the second judicial district of Panola county against the Batesville Southwestern Railroad Company for actual and statutory damages, alleging therein the following material facts:

That the defendant, the Batesville Southwestern Railroad Company is a domestic corporation of Mississippi, doing business wholly within this state, and was on the 27th day of April, 1912, and is now, a common carrier of freight for hire, operating a line of railway wholly within the second judicial district of Panola county, Miss. That under the laws of Mississippi, it was the duty of the defendant railroad company to submit tariffs of charges for the transportation of freight along and over its line, to the Mississippi Railroad Commission for revision, approval, or rejection before putting the said rates into effect. That said defendant failed to file these rates or tariffs of charges with the Mississippi Railroad Commission, but had on file with the Interstate Commerce Commission, rates approved by said commission. That on the 23d day of July, 1913, after having been cited by the State Railroad Commission, the defendant railroad company appeared before the Railroad Commission in answer to the complaint of the plaintiff in this case, and others, that its intrastate rates were unreasonable; and the said Railroad Commission, by order, declared the freight rate on logs in carload lots, per thousand feet, in force on said railroad excessive and disallowed and disapproved the same. Said order further fixed and established the legal rate allowed to be charged on oak logs, in carload lots, between Milepost thirteen and Batesville, both being stations on the line of defendant railroad company, at one dollar and seventy-five cents per thousand feet; and said order further commanded and required said railroad to repay to such person or persons as have shipped logs over said railroad and paid the illegal and excessive tariff rate, the difference between the rate fixed under this order and that fixed under the tariff of said railroad of April 27, 1912, which was declared to be unreasonable. That the freight rate on logs declared to be unreasonable between the two above-named stations was three dollars and thirty-five cents per thousand feet. That the above order of the State Railroad Commission has been in force and effect from the time of its passage. That under the laws of the state of Mississippi it was the duty of the Railroad Commission to regulate and fix the freight charges of all railroads doing intrastate business in Mississippi which failed to furnish their tariff of charges to said commission as required by law. That under the laws of the state of Mississippi, sections 4839 and 4840, Code 1906, it is provided that any railroad corporation charging more than the rate allowed by the tariff of rates fixed by the commission is guilty of extortion, and the injured party can recover as actual and statutory damages, twice the amount of the damages sustained by such overcharge. That the freight rate charged on oak logs in carload lots per thousand feet by the defendant under its tariff declared to be unlawful and extortionate was three dollars and thirty-five cents per thousand feet; that the legal rate fixed by the commission on July 23, 1913, between the above-named stations is one dollar and seventy-five cents per thousand feet on oak logs in carload lots; and that the difference or actual amount overpaid the railroad company was one dollar and sixty cents per thousand feet. That plaintiff shipped over the said line of defendant railroad company, from the said Milepost thirteen to the station of Batesville, between the 11th day of June, 1913, and the 23d day of July, 1913, ninety-one carloads of oak logs, on which it was compelled to pay the freight rate of three dollars and thirty-five cents per thousand feet. "That all of said logs so shipped were delivered to the defendant under a verbal contract of affreightment at Milepost thirteen for transportation to the said station of Batesville, at which latter station said logs were, as per the verbal instructions of the plaintiff acting for the Memphis Band Mill Company, who became the owner of said logs on their arrival at said station of Batesville, turned over and delivered to the Illinois Central Railroad Company, and transported over the line of the last-named railroad company to the city of Memphis, state of Tennessee." That there was not, is not now, and never has been, any joint or through rate from said Milepost thirteen to the city of Memphis. That when the said logs were delivered at Batesville to the Illinois Central Railroad Company, the defendant railroad company advised the said Illinois Central Railroad Company of the amount of freight charges claimed by it as advance charges, and that these advance charges were collected by the Illinois Railroad Company in Memphis from the consignee.

A detailed statement showing the respective dates of the shipments of logs in the manner above set out, the number of feet contained in each of said shipments, the amount of overcharges on each shipment, was filed as an exhibit to the declaration; and there is no controversy here as to the amount of these overcharges. There were two counts in the declaration, alleging in substance the same cause of action, with the exception that in the second count the claim is for damages on shipments made between the same points on the line of the defendant railroad company, but between July 23 and September 27, 1913.

There was a demurrer interposed to the declaration upon the ground that the declaration shows that the shipments of these logs were all interstate; and, for this reason, that the Mississippi Railroad Commission had no jurisdiction in the matter, and also that the plaintiff seeks to recover double damages or double the amount of actual damages for certain shipments before July 23, 1913, the date of the order establishing the rates of the Railroad Commission. The demurrer was overruled, and upon the defendant's declining to plead further, upon the first count of the declaration, the court entered a judgment for the actual damages consisting of the overcharge in freight shipped before the order of the Mississippi Railroad Commission went into effect; on the second count of the declaration, which was for the damages sustained after the order of the Railroad Commission went into effect, the court entered judgment for plaintiff for double damages; the said judgment amounting in all to the sum of two thousand, seven hundred and thirteen dollars and seventy-five cents, from which judgment this appeal is prosecuted.

We neglected to state that an attempt was made to remove the case by the defendant to the federal court, upon the ground that the shipments of logs involved in this controversy were interstate shipments. It is unnecessary to further refer to the petition for removal, for the reason that the decision of the court upon the question of whether or not this was an intrastate or an interstate shipment is decisive of the question of removal. This case has been ably presented to the court by counsel for both parties by oral argument as well as printed briefs.

It is the contention of the appellant that the declaration shows upon its face that it was an interstate shipment, basing this contention upon the following paragraph of the declaration, viz.:

"That all of said logs so shipped as aforesaid were delivered to the defendant under a verbal contract of affreightment at said Milepost thirteen for transportation to the said station at Batesville, at which latter...