Hardy v. Atchison

• Decision Date: 28 November 1884
• Citation: 5 P. 6,32 Kan. 698
• Court: Kansas Supreme Court
• Parties: GEORGE W. HARDY v. THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY

5 P. 6

32 Kan. 698

GEORGE W. HARDY v. THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY

Supreme Court of Kansas

November 28, 1884

Error from Reno District Court.

FEBRUARY 1, 1883, Geo. W. Hardy filed his bill of particulars with a justice of the peace of Reno county, demanding judgment against The Atchison, Topeka & Santa Fe Railroad Company for $ 100, alleged excessive charges made by the company and paid by the plaintiff on goods, wares and merchandise shipped by the plaintiff over the road of the company. Trial before the justice on February 12, 1883, the defendant not appearing. Judgment was rendered in favor of the plaintiff for $ 100 and costs. The railroad company appealed to the district court. At the September Term for 1883, the case was tried by the court upon an agreed statement of facts, a jury being waived. The facts agreed upon are as follows:

"It is hereby stipulated and agreed in the above-entitled cause that the same shall be submitted to the above court, at the present term, (September 21, 1883,) upon the following statement of facts, which it is agreed are all the facts in said cause, and the same shall be tried in this and all other courts upon the facts herein set forth, and no other, to wit:

"First That each of the shipments of merchandise mentioned in plaintiff's bill of particulars was from St. Louis, Mo under a contract there made for transportation through from St. Louis, Mo., to Hutchinson, Kansas, upon the usual through rates charged upon such class of goods from St. Louis, Mo to Hutchinson, Kansas.

"Second That the defendant received, under arrangement mutually agreed upon between it and the St. Louis & San Francisco Railroad Co., the sum of seventy-five cents on first-class freight; sixty-two on second-class freight; fifty-four on third-class freight; forty-seven on fourth-class freight; thirty-seven cents on Class 'A;' Class 'B,' twenty-three cents; Class 'C,' nineteen cents per hundred pounds, on freight mentioned in plaintiff's bill of particulars, shipped via Halstead station; and by mutual arrangement with the Missouri Pacific Railway Co., received on all freights mentioned in said plaintiff's petition, shipped via Emporia Junction, the sum of, first-class, seventy-eight cents per hundred pounds; second-class, seventy cents; third-class, sixty cents; fourth-class, forty-one; Class 'A,' forty; Class 'B,' twenty-five; Class 'C,' twenty.

"Third: That the through rates for all freight mentioned in said plaintiff's petition, and charged and collected by said defendant, were in every instance the same as charged by mutual arrangements of all railroads connecting with said defendant's railroad, for similar shipments from St. Louis to Hutchinson.

"Fourth: That the through rate for said shipments is in all cases made up by adding to the rate agreed upon by the Southwestern Pool Association from St. Louis to the Missouri river, the rate of said defendant from the Missouri river to Hutchinson; and by mutual arrangement between said defendant and the St. Louis & San Francisco R. R. Co. and the Missouri Pacific R. R. Co., said through rate is divided between said defendant and said railroads, where freights are delivered to said defendant west of the Missouri river, by allowing to said defendant the proportion of said rates mentioned in the second article of this agreement.

"Fifth: The through rate as made up as above stated, from St. Louis to Hutchinson, is--first class, $ 1.52 per hundred pounds; second class, $ 1.27; third class, $ 1.02; fourth class, eighty-two cents; Class 'A,' sixty-one cents; Class 'B,' forty-nine cents; Class 'C,' thirty-nine cents: which rate was charged over every road out of St. Louis by whatever route the same was delivered to defendant.

Sixth: The rate charged by defendant for freights from Kansas City, Mo., to Hutchinson, Kansas, two hundred and thirty-four miles, was as follows for through freight: First class, eighty-seven cents per hundred pounds; second class, seventy-seven cents; fourth class, fifty-seven cents; Class 'A,' forty-four cents; Class 'B,' twenty-nine cents; Class 'C,' twenty-four cents.

"Seventh: That the rates charged by defendant on local shipments from. Emporia to Hutchinson are as follows, to wit: First class, sixty-three cents per hundred pounds; second class, fifty-six cents; third class, fifty cents; fourth class, forty-two cents; Class 'A,' thirty-two; Class 'B,' twenty-two; Class 'C,' nineteen.

"Eighth: That the rates charged by defendant from Halstead to Hutchinson, were as follows: First class, twenty-four cents per hundred pounds; second class, twenty cents; third class, eighteen cents; fourth class, fourteen cents; Class 'A,' twelve cents; Class 'B,' eight cents; Class 'C,' eight cents.

"Ninth: That the through rate on all shipments mentioned in plaintiff's bill of particulars charged by said railroads, and collected by said defendant, and divided between said defendant and said railroads as above set forth, was in every instance less than the sum of the local rates from St. Louis to Emporia or Halstead respectively, added to the local rates of said defendant from Emporia or Halstead to Hutchinson respectively, as set forth in the seventh and eighth clauses of this agreement.

"Tenth: That the local rates for all of said shipments from St. Louis to Halstead were as follows, to wit: First class, $ 1.48 per hundred pounds; second class, $ 1.23; third class, ninety-eight cents; fourth class, seventy-eight cents; Class 'A,' sixty-eight cents; Class 'B,' forty-nine cents; Class 'C,' thirty-eight cents.

"Eleventh: That the local rates from St. Louis to Emporia were as follows, to wit: First class, $ 1.20 per hundred pounds; second class, ninety-five cents; third class, seventy-five cents; fourth class, fifty-eight cents; Class 'A,' fifty cents; Class 'B,' forty cents; Class 'C,' thirty cents.

"Twelfth: That if the plaintiff recovers anything in this action, he shall recover an amount equal to the amount received by defendant, or its proportion of the through rate on said shipments, less the amount of its local rates from the point where said goods were delivered to it by the connecting line to Hutchinson, as hereinbefore set forth.

"Thirteenth: That neither party to this agreement admits that any of the facts herein set forth and agreed to are relevant or material to this case, and hereby preserves all rights of objecting and excepting to the relevancy or materiality of the same.

"Fourteenth: That the defendant admits that it received of the said plaintiff the amounts set forth in said plaintiff's petition for the freight shipped as herein set forth, which were demanded by defendant prior to a delivery of said freight, and plaintiff was compelled to pay the same in order to get possession of said goods. That plaintiff demanded of defendant a return of the difference between the prices charged and paid and the statutory rate for local freight between said points on the Santa Fe railroad.

"Fifteenth: That the distance between Emporia Junction and Hutchinson, both points on the Santa Fe railroad, and in the state of Kansas, is 106 miles.

"Sixteenth: That the distance between Halstead and Hutchinson is 22 miles; that both of said points are on defendant's road, and within the state of Kansas.

"Seventeenth: That it is agreed that the statutory rate, local tariff rate, and through rates, of the Santa Fe road are all in issue as far as they may be deemed competent by the court under the objections as heretofore set out.

"Eighteenth: By virtue of the location of the defendant's road, and favors it is enabled to extend to the St. Louis & San Francisco railroad and the Missouri Pacific railroad, the defendant receives more than its mileage proportion of the through rates above set forth from St. Louis to Hutchinson, on all through shipments over said roads from St. Louis to Hutchinson.

"Nineteenth: That on said shipments only one receipt, or bill of lading, is issued to the shipper; but that each company issues its own way-bill to and from the connecting point; that each company is liable for loss and damages that occur on its own road only.

"Twentieth: That all of said shipments were prior to the repeal of the maximum-freight-rate law."

The court rendered judgment for the defendant. The plaintiff excepted, and brings the case here.

Judgment affirmed.

James McKinstry, for plaintiff in error:

The limitation in the contract for shipment that neither the St L. & S. F. Rld. Co. nor the defendant in error should be liable for any loss or damage not occurring on its own road, makes the first company a mere forwarder of the freight. Were it a through contract, this limitation could not be in it, as under a through contract, the first company might be sued for a loss occurring on any of its connecting lines. A guaranty of a through rate by one company does not bind connecting lines, nor does it constitute a through contract. (Sherman v. Hudson River Rld. Co., 64 N.Y. 254; Schneider v. Evans, 25 Wis. 241; Burroughs v. N. & W. Rld. Co., 100 Mass. 26, and cases there cited; St. Louis Ins. Co. v. Vandalia Rld. Co., 104 U. Su. s. 146; Myrick v. Michigan Cent. Rld. Co., 107 id. 102.) The law as laid down in these cases puts the plaintiff and defendant in the same relation to each other in which they would be had the defendant received the goods directly from the plaintiff at Halstead station, to be shipped as local freight from there to Hutchinson. The defendant admits that it violated one of the public laws of Kansas, but says it did so under an arrangement with another road doing business in this state. These roads were both bound to obey the laws of the state of Kansas; the one had promised by accepting its existence...