Halliday Milling Company v. Louisiana & Northwest Railroad Company

• Decision Date: 19 November 1906
• Citation: 98 S.W. 374,80 Ark. 536
• Parties: HALLIDAY MILLING COMPANY v. LOUISIANA & NORTHWEST RAILROAD COMPANY
• Court: Arkansas Supreme Court

98 S.W. 374

80 Ark. 536

HALLIDAY MILLING COMPANY v. LOUISIANA & NORTHWEST RAILROAD COMPANY

Supreme Court of Arkansas

November 19, 1906

Appeal from Columbia Circuit Court; Charles W. Smith, Judge reversed.

Reversed and remanded.

C. W McKay, for appellant.

1. If there is some evidence tending to establish the plaintiff's cause of action, it is error to direct a verdict for the defendant; and this is true even though the weight of evidence may be with the party in whose favor the verdict is directed. 71 Ark. 445; 57 Ark. 527; 71 Ark. 305; 61 Ark. 442; 62 Ark. 63; 63 Ark. 94; 37 Ark. 164.

2. A witness' opinion is admissible as evidence where experience and observation in the special calling of the witness gives him knowledge of the subject in question beyond that of persons of common intelligence. 56 Ark. 466; 55 Ark 65; 95 U.S. 297.

3. A shipper in a case of interstate carriage may in a state court under the common law be accorded relief from unreasonable freight rates. 85 S.W. 1052, s. c. 60 Cent. Law Journal, 468.

Stevens & Stevens and Moore, Smith & Moore, for appellee.

1. No rights can be predicated upon a State statute if Congress has legislated upon the same subject. 88 S.W. 836; 158 U.S. 98; 202 U.S. 242. The fact that the complaint prays for the taxing of an attorney's fee as part of the costs of the action, which can only be taxed in a suit brought under the statute, removes any doubt whether plaintiff brought his suit under the statute, or whether the averments constitute a common-law action. 80 S.W. 580. If the plaintiff made a mistake in declaring under the statute, its complaint, on demurrer, would fail. There could be no error in the court instructing a verdict for defendant where plaintiff's cause of action must have failed if a demurrer had been interposed to the complaint.

2. The right to question the reasonableness of interstate rates is, under the Interstate Commerce Act, a matter of primary as well as exclusive jurisdiction in the Federal courts, as held in 58 F. 858. The rule established by the decisions of Federal circuit courts should be followed, rather than the rule established in 85 S.W. 1052, in the absence of a decision by the United States Supreme Court. See, also, § 8, art. 1, Const. U.S.

3. The testimony of rate clerk Connolly was incompetent because it was based upon the rate that the Railroad Commission had established, and also upon the fact that the reports of the company filed with that commission showed that the company was carrying a surplus, whereas the evidence shows conclusively that there was not only a surplus, but a deficit.

OPINION

HILL, C. J.

Appellant was a grain dealer at Cairo, Ill., and shipped seven cars of corn and one car of flour to customers at Magnolia, Arkansas, in December, 1905, at a delivered price. The shipments were made over St. Louis Southwestern Railway from Cairo, Ill., to Pine Bluff, Ark., there consigned to a local agent of appellant, and by him reshipped over the St. Louis Southwestern from Pine Bluff to McNeil, and from McNeil to Magnolia over line of appellee. The latter distance is 6.4 miles, and the distance from Pine Bluff to McNeil about 100 miles. Cairo to Magnolia is about 378 miles. The appellee railroad collected from appellant's consignees 12 1/2 cents per hundred pounds for its freight for shipment over the 6.4 miles from McNeil to Magnolia; and appellant repaid to its consignees the charge over its contract price of delivery, and sued appellee company for an amount claimed to be excessive and unreasonable and unjust, and alleged six cents per hundred pounds on corn and 7 1/2 cents per hundred pounds on flour would have been a reasonable rate, and prayed for recovery of the sum paid over said rate. The court directed a verdict for the defendant, and the sole question is whether appellant adduced evidence authorizing it to go to the jury on the charge made.

In passing upon this question only the evidence favorable to appellant is pertinent, and only it will be reviewed.

Just previous to the shipments in question there had been a joint rate between St. Louis Southwestern Railway Company and appellee from Cairo to Magnolia on corn twenty cents and on flour twenty-five per hundred weight, of which appellee received thirty per cent. or six cents on corn and 7 1/2 cents on flour. Whether this rate was in force at time of shipment was a matter of conflict in the evidence. There was also a joint rate existing between appellee near this same time with other connecting roads for corn and flour from Cairo to Magnolia coming over Vicksburg, S. & P. Railroad to Gibbsland, La., there connecting with appellee, and over appellee's road from Gibbsland to Magnolia, a distance of 54 miles, for much less than the charge complained of. There was also in evidence the Arkansas commission tariff, which was five cents on corn and eight cents on flour from McNeil to Magnolia. There was evidence from a witness thoroughly familiar with rates on the commodities under inquiry, and in this section of the country, who testified to the unreasonableness of the charges made, and sustained as reasonable and fair the charges as alleged in the complaint. The basis of his estimates was knowledge of rates under similar circumstances and knowledge of the usual divisions of accepted rates. Other testimony along the same line was offered.

Appellee also introduced the rate clerk of the Arkansas Railroad Commission, whose duties were to assist the commission in fixing rates within the State, and who had full knowledge of existing rates and conditions. He had before him the financial statement of appellee road rendered to the commission (the correctness of which was attacked by appellee) showing its earnings and expenses, capital invested, etc. Taking into consideration proper compensation to the road and a proper rate, based on other considerations as well as a compensatory one, he pronounced the rate charged excessive and unreasonable, and fixed five cents on corn and eight cents on flour as the reasonable rate.

Appellant's superintendent explained why the shipment was made to Pine Bluff and reshipped from there to Magnolia in this way: He was under the impression that a through rate theretofore in force from Cairo to Magnolia had been withdrawn. He afterwards learned this was a mistake, but, believing that there was no through rate, he thought he had better ship to appellant's local agent at Pine Bluff, and let him reship on a combination of local rates, rather than ship direct to McNeil on the St. Louis Southwestern Railway, where he had no one to make reshipment over appellee's line from there to Magnolia. Pine Bluff is a city on the St. Louis Southwestern Railway between Cairo and McNeil.

1. Appellee argues that the evidence of the Railroad Commission rate clerk was incompetent because it was shown by the president and auditor of the company that the financial statement furnished the Railroad Commission by the former auditor was not correct, and showed a surplus, when it should have shown a deficit. The report was duly verified by proper officers of the company, and was made pursuant to law, and was a competent basis from which to make estimate on proper compensation in rates, and was furnished for that purpose. It was open to appellee to show errors in it, but that did not destroy the admissibility of testimony based upon it unless the testimony against it was uncontradicted, reasonable and consistent in itself, not weakened by cross-examination nor its credibility impeached. If within the latter category, then the jury could not arbitrarily disregard it. The testimony against the report was not of such a character that it would have been an arbitrary and unwarranted action on part of the jury to have disregarded it. The rate clerk did not base his testimony entirely upon the financial statement, although it was one of the controlling factors.

An attack is made upon testimony of a former superintendent of appellant company. His testimony as to rates has heretofore been mentioned. He properly qualified himself as an expert to testify on the subject within the rules governing the qualification of experts. 1 Wigmore on Evidence, § 556; 5 Enc. of Evidence, pp. 517 and 599; Railway Company v. Bruce, 55 Ark. 65.

The expert's evidence of a reasonable rate based on special knowledge of rates under similar conditions was properly admissible, although he did not have knowledge of the financial condition of the road and cost of transportation on this line, for a reasonable compensation is usually determined by usage or the amount commonly or customarily paid for like services under similar conditions. Johnson v. Pensacola & P. Rd. Co., 16 Fla. 623, S. C. 26 Am. Rep. 731; Louisville, E. & St. L. Ry. v. Wilson, 4 L.R.A. 244; 4 Elliott on Railroads, § 1560; Hutchinson on Carriers, § 447; Ray on Neg. of Imp. Duties Freight Carriers, p. 845. See, also, 2 Elliott on Railroads, §§ 692, 663.

The evidence of through rates and the division thereof on both ends of appellee's line was also admissible. It would be fair to deduce therefrom that the appellee would not agree to maintain rates which were not fair and compensatory to itself, as well as reasonable for the services rendered. Of course, none of...