Doney v. Northern P. Ry. Co.
| Decision Date | 31 May 1921 |
| Docket Number | 4338. |
| Citation | 199 P. 432,60 Mont. 209 |
| Parties | DONEY v. NORTHERN PAC. RY. CO. ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clark County; W. H. Poorman Judge.
Action by Jabez Doney against the Northern Pacific Railway Company and another. Judgment for defendants, and plaintiff appeals. Affirmed.
Walsh Nolan & Scallon, of Helena, for appellant.
Gunn Rasch & Hall, of Helena, L. O. Evans, of Butte, W. B. Rodgers, of Anaconda, and D. M. Kelly, of Butte, for respondents.
This action was brought by the plaintiff to recover damages for alleged discriminatory and unreasonable freight charges collected by the defendants on certain lumber shipments. Separate general demurrers were interposed by each of the defendants to the plaintiff's second amended complaint, which were sustained by the lower court and judgment entered dismissing such complaint. The appeal is from the judgment.
Three specifications of error are assigned by the plaintiff, involving but one question, viz.: Does the complaint state facts sufficient to constitute a cause of action? The second amended complaint, after alleging the corporate character of the defendants and the ownership and operation by the Northern Pacific Railway Company as a common carrier of a railroad between the stations of Evaro and Schley, in Missoula county, of St. Regis, in Mineral county, of Hamilton, in Ravalli county, and of Rocker, Butte, and Butte Hill, in Silver Bow county, and the operation by the Butte, Anaconda & Pacific Railway Company of a railroad between Anaconda, Rocker, Butte, and Butte Hill, alleges as follows :
"III. That the plaintiff, during the year 1914, was engaged in the business of shipping lumber and various articles of lumber from the said stations of Evaro and Schley to Butte and Butte Hill aforesaid.
IV. That at all times in question herein, and particularly on and between the 18th day of April and the 24th day of November, in the year 1914, the said defendant Northern Pacific Railway Company received for transportation and undertook to transport and deliver, or cause to be delivered, freight generally and particularly lumber and articles made of lumber, from all of the stations hereinafter mentioned on the line of the railroad of the Northern Pacific Railway Company to points on Butte Hill aforesaid, by transporting the same over its own line to the said station of Rocker on the line of the Butte, Anaconda & Pacific Railway Company, and there delivering the same to the Butte, Anaconda & Pacific Railway Company for transportation from Rocker and delivery at points on Butte Hill aforesaid, and that there was a connection between the said lines at Rocker.
V. That on the 18th day of April, 1914, and the 28th day of November, 1914, and between the said dates, the said plaintiff delivered to the defendant Northern Pacific Railway Company, at the said stations of Evaro and Schley, for shipment from the said stations to Butte Hill, sundry quantities of lumber, to wit, of the kind of lumber used in and around mines and designated mining timbers and stulls, amounting in the aggregate to 163 carloads, and that the same were shipped and transported in carload lots from the said stations of Evaro and Schley.
VI. That the said defendant, as common carrier, accepted and received the said lumber from said plaintiff at the times and places hereinbefore mentioned, and undertook to transport the said lumber and cause it to be delivered and did transport the said lumber, and cause it to be delivered to a corporation known as the Butte & Superior Copper Company, Limited, at a point on Butte Hill; that the said defendant Northern Pacific Railway Company caused the said lumber to be delivered, as aforesaid, by transferring the same to the defendant Butte, Anaconda & Pacific Railway Company at the said station of Rocker; and that from said point the cars on which said lumber was loaded were hauled by the said defendant Butte, Anaconda & Pacific Railway Company and the lumber thereon delivered by it to the said consignee.
VII. That the freight on said lumber was payable by plaintiff, that is to say, that the said plaintiff had agreed with the said consignee to deliver the lumber to the latter on Butte Hill at a price which included the freight, and that the said freight was payable at the point of delivery to the consignee.
VIII. That the said defendants exacted from the said plaintiff, through the said consignee, and demanded and required payment of freight on said lumber as a condition of the delivery thereof, at the rate of 11 1/2 cents per 100 pounds, and the said plaintiff, through his said consignee, paid the freight therefor at said rate, and that the freight thus paid by the said plaintiff for the said lumber amounts in the aggregate to the sum of $11,157.01; that the said freight, to wit, the moneys paid for the said freight charges, was paid to and collected by the defendant Butte, Anaconda & Pacific Railway Company.
IX. That out of the said moneys so collected, the said Butte, Anaconda & Pacific Railway Company retained for its share the sum of 1 1/2 cents per 100 pounds; and that its charge for its services in the transportation and delivery of the said lumber was 1 1/2 cents per 100 pounds; and that the remainder of the moneys so collected for said freight, as aforesaid, was paid over by the Butte, Anaconda & Pacific Railway Company to the Northern Pacific Railway Company, and received and retained by it.
X. That the Butte, Anaconda & Pacific Railway Company, in collecting the said freight, as aforesaid, from the plaintiff, through the said consignee, was acting as the agent of the Northern Pacific Railway Company, as well as for itself.
XI. And the plaintiff further alleges that the said rate of freight charged and collected from the plaintiff, as aforesaid, was excessive and unreasonable, and that it was excessive and unreasonable to the extent of 1 1/2 cents per 100 pounds in the case of any and every carload exceeding 60,000 pounds in weight and in the case of every carload of less than 60,000 pounds in weight, said rate was excessive and unreasonable to the extent that the charge made for such carload exceeded $60, and that on every carload of the freight hereinbefore referred to, more than $60 was collected.
XII. That said rate was also discriminatory as against the plaintiff, and as between the plaintiff and other persons engaged in the same kind of business, and shipping similar articles over defendants' roads to the said point in similar circumstances, and even from greater distances, to wit, from Hamilton and St. Regis aforesaid, and that, thereby, such other persons were given a preference over the plaintiff to the extent of said excessive rates; that the said rate was also discriminatory to said extent as against the said stations of Evaro and Schley, and as between the said stations and the said stations of Hamilton and St. Regis, and that it was necessary for the plaintiff to ship the said lumber from the said stations of Evaro and Schley.
XIII. That the rate charged by and collected for and received by the Northern Pacific Railway Company for the transportation of the said lumber to Rocker and its delivery there to the Butte, Anaconda & Pacific Railway Company was also excessive, unreasonable, and discriminatory, as aforesaid.
XIV. That the charge made and collected, as aforesaid, by the Butte, Anaconda & Pacific Railway Company for the transportation of lumber shipped by plaintiff, as aforesaid, was the regular rate charged by said defendant on similar articles of lumber delivered to it in carload lots at Rocker by the Northern Pacific Railway Company for delivery at Butte Hill, and that the said charge was made without any reference to the point of origin on the Northern Pacific Railway of the freight so transported; that the excessive charge over and above a reasonable rate or charge and the discrimination in charges hereinbefore set forth were in the charge made by the Northern Pacific Railway Company and the amount received by it for transportation of the said lumber to Rocker and the transfer there to the Butte, Anaconda & Pacific Railway Company.
XV. That a rate or charge on said lumber, for handling and transporting the same from either Evaro or Schley aforesaid to Rocker and delivering the same at Rocker to the Butte, Anaconda & Pacific Railway Company, of 8 1/2 cents per 100 pounds, in case of carloads in excess of 60,000 pounds and in case of carloads of 60,000 pounds or of a lesser weight, a total charge of $51 per car, would have been, respectively, a reasonable and sufficient rate to have charged therefor, and that such rates or charges were the highest reasonable rates to charge therefor, and that everything above them, or either of them, charged during said period to the plaintiff, was unjust, excessive, unreasonable, and discriminatory, as hereinbefore more fully alleged.
XVI. And plaintiff avers, on his information and belief, that during the whole of the said period, to wit, on and between the aforesaid dates, the defendant Northern Pacific Railway Company was transporting and causing to be delivered by the Butte, Anaconda & Pacific Railway Company similar articles in similar circumstances and to all points on Butte Hill from Hamilton aforesaid, and for shippers shipping from Hamilton for 10 cents per 100 pounds, and from St. Regis aforesaid, and for shippers shipping from St. Regis, for 11 cents per 100 pounds; that the said rates were for carloads and were accompanied with a minimum requirement of 60,000 pounds; that is to say, that if the load actually shipped was less than 60,000 pounds, the defendants would collect as for 60,000 pounds; that the rate of 10 cents per 100 pounds with...
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