Hall v. Pennsylvania R. Co.
| Decision Date | 01 July 1916 |
| Docket Number | 352,337 |
| Citation | 100 A. 1035,257 Pa. 54 |
| Parties | Hall v. Pennsylvania Railroad Company |
| Court | Pennsylvania Supreme Court |
January 18, 1915, Argued; March 13, 1916, Reargued; January 5, 1917 Reargued
Appeals, Nos. 337 and 352, Jan. T., 1914, by plaintiff and defendant, from judgment of C.P. No. 5, Philadelphia Co June T., 1906, No. 4858, on reduced verdict for plaintiff, in case of Samuel D. Hall v. The Pennsylvania Railroad Company. Reversed.
Trespass to recover damages for unlawful discrimination in freight rates charged by a railroad company. Before MARTIN, P.J.
The opinion of the Supreme Court states the facts.
Verdict for plaintiff for $25,870.62 single damages and $25,219.17 damages for delay in payment. The court subsequently entered judgment for defendant n.o.v. for all of the verdict above the sum of $3,624.69, and judgment for plaintiff for the latter amount. Plaintiff and defendant appealed.
Errors assigned were various rulings of the trial judge referred to in the opinion of the Supreme Court.
Judgment reversed and judgment for plaintiff for $248,658.39.
Francis Shunk Brown, of Simpson, Brown & Williams, with him William Findlay Brown, for Samuel D. Hall. -- The amendment claiming treble damages did not introduce a new cause of action, as plaintiff's statement expressly referred to the Act of June 4, 1883, P.L. 72: Henning v. Keiper, 37 Pa.Super. 488; Puritan Coal Mining Co. v. Penna. R.R. Co., 237 Pa. 420; Cox v. Penna. R.R. Co., 240 Pa. 27.
Mitchell Coal & Coke Co. v. Penna. R.R. Co., 241 Pa. 536, is not in point as the action was brought at common law in that case, and the statement did not in any way refer to the statute: Hogarty v. Philadelphia & Reading Ry. Co., 245 Pa. 443; Missouri, Kan. & Tex. Ry. Co. v. Wulf, 226 U.S. 570.
The evidence of concealment by defendant of the unlawful rebating was sufficient to toll the bar of the statute of limitations: Smith v. Blachley, 198 Pa. 173; Kirby v. Lake Shore & Mich. Southern R.R. Co., 120 U.S. 130, 30 L.Ed. 569; Manufacturers' Natl. Bank v. Perry, 144 Mass. 313 (11 N.E. Repr. 81); Cloyd v. Reynolds, 44 Pa.Super. 81, id. 52 Pa.Super. 365; Cook & Wheeler v. Chicago, Rock Island & Pac. Ry. Co., 81 Iowa 551 (46 N.W. 1080); Athey et al. v. Hunter et al., 65 Ill.App. 453; Bartalott v. International Bank, 14 Ill.App. 158; Boyd v. Boyd, 27 Ind. 429; Dorsey Machine Co. v. McCaffrey, 139 Ind. 545 (38 N.E. Repr. 208); Jackson v. Jackson, 149 Ind. 238 (47 N.E. Repr. 963); Whitesell v. Strickler, 167 Ind. 602 (78 N.E. Repr. 845).
The evidence that Boyd & Company were the agents of the defendant was sufficient to go to the jury.
Under all the evidence, plaintiff was entitled to damages for delay in payment: Pierce v. Lehigh Valley Coal Co. (No. 2), 232 Pa. 170.
Francis I. Gowen and John G. Johnson, with them Sellers & Rhoads, for Pennsylvania Railroad Company. -- The amendment to the statement of claim converting the cause of action set forth therein into one for treble damages, was properly refused: Mitchell Coal & Coke Co. v. Penna. R.R. Co., 241 Pa. 536.
The bar of the statute of limitations was not tolled as to shipments made prior to February 1, 1900: Smith v. Blachley, 198 Pa. 173.
The plaintiff's recovery was properly restricted to shipments on which he paid freights.
Before BROWN, C.J., MESTREZAT, POTTER, STEWART, MOSCHZISKER, FRAZER and WALLING, JJ.
Plaintiff, a retail coal dealer, sued to recover damages from defendant for unlawful discrimination in freight rates for coal hauled between the anthracite coal regions and the City of Philadelphia. The action was brought February 1, 1906, and the damages claimed were for a period of alleged discrimination between June 1, 1891, and July 23, 1901. The original statement claimed damages to the extent of $100,000, which plaintiff alleged he suffered by reason of the fact that defendant "did charge, demand and receive from plaintiff for the transportation of said coal a sum in excess of that charged and received by defendant from divers other persons upon like conditions, under similar circumstances and during the same periods of time, and allowed such other persons, firms and corporations concessions in rates and drawbacks which were not allowed to plaintiff, all in violation of the Constitution of Pennsylvania and the statutes passed in pursuance thereof." There is a further averment that defendant also paid the rent of the coal yard and offices of a favored shipper of coal; and the statement then sets forth that, by reason of fraudulent concealment by defendant, plaintiff was prevented from discovering the fact of overcharge until within a year prior to beginning suit. An amended statement was filed in 1909, in which plaintiff charged defendant's acts were "in violation of the Constitution of Pennsylvania and statutes passed in pursuance thereof, and particularly the Act of June 4, 1883, P.L. 72." Issue was joined on the pleas of not guilty and the statute of limitations. A stipulation signed by counsel was filed in which it was agreed the total number of tons of coal consigned to plaintiff during the period of time named was 268,136.05 of which 52,525.05 tons were shipped within six years of the beginning of suit, and 215,611 tons previous thereto. Of the former amount 36,092.19 tons, and of the latter amount 174,175.16 tons, were purchased from James Boyd & Company, alleged agents for defendants; the remainder elsewhere. The court charged the jury that if there was a fraudulent concealment which prevented plaintiff from making the discovery of rebates prior to the time of such alleged concealment, accepted by counsel as November 1, 1893, they might find damages that had accrued at that time, and also damages for rebates allowed within six years of the time suit was commenced. There was a verdict for plaintiff for $25,870.62 single damages to which the jury added $25,219.17, as damages for delay in payment, making a total of $51,089.79. The effect of this verdict was a finding that Boyd & Company were defendant's agents, and the statute of limitations had been tolled by reason of fraudlent concealment as to shipments before November 1, 1893. Plaintiff subsequently moved for judgment for treble damages as to shipments included in the verdict, and also as to other shipments previous to the six-year period, but subsequent to November 1, 1893. This motion was denied and judgment n.o.v. was entered for defendant for all of the verdict above the sum of $3,624.69, representing the rebate paid to Downing Brothers, as to which amount judgment was entered for plaintiff. The effect of this judgment is to hold plaintiff's evidence of Boyd & Company's agency insufficient to submit to the jury, and, consequently, plaintiff could not claim damages on coal bought from them; that evidence of concealment of rebates was insufficient to toll the statute; and that no claim for treble damages or for damages for delay could be allowed. From the judgment entered as above stated both plaintiff and defendant appealed. As the various questions involved in the two appeals are more or less dependent upon each other, and require joint consideration in disposing of them, they will be considered together in this opinion.
The verdict, which is amply supported by the evidence, establishes that, during the time covered by the statement of claim, the firm of Downing Brothers, coal dealers in Philadelphia and competitors of plaintiff, paid the regular freight charges on coal shipped to them at the same rate as plaintiff paid for coal, under identical conditions and circumstances, and subsequently received rebates of fifty, twenty-five and fifteen cents a ton from defendant, and also received, in the years 1897 to 1900 inclusive, the sum of $9,500 a year to pay rent for their coal yard. Defendant contends the coal sold plaintiff by Boyd & Company was sold at a price delivered in Philadelphia, and that Boyd & Company paid the freight, hence plaintiff was not injured by the alleged rebates; there being no contractual relation between defendant and plaintiff, the right of action, if any, was against Boyd & Company. This view was sustained by the court below on demurrer to plaintiff's original statement of claim. In his amended statement plaintiff averred payment of the freight by him to defendant. It appears, from the testimony of Downing and plaintiff's clerk, Smedley, that both plaintiff and Downing Brothers received from Boyd & Company the coal billed at the price at the mines, plus freight to Philadelphia. The verdict establishes that freight charges were added to the price of the coal, and paid by plaintiff to Boyd & Company, and the question arises whether there was sufficient evidence that Boyd & Company were agents of defendant to warrant its submission to the jury. In entering judgment non obstante veredicto the court below decided this question in the negative.
George H. Ross, a witness for defendant, testified that Boyd & Company were sales agents in the Philadelphia district for the Susquehanna Coal Company, a corporation owned or controlled by defendant. W. C. Downing, of the firm of Downing Brothers, to whom the rebates complained of had been paid, testified Boyd & Company were agents of defendant for collection of freight on coal, and that he paid freight to them as such. This witness also testified to having seen an agreement of their employment as agents in 1897 or 1898, that he read it throughout, and it contained provisions for collection of freight from consignees by Boyd & Company, for which service the latter were to receive a certain commission. At the trial plaintiff called for the production of this agreement, and in reply to the call defendant's counsel stated they...
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