Hoover v. Pennsylvania R.R. Co.

• Decision Date: 19 July 1893
• Docket Number: 143
• Parties: Hoover et al. v. Penna. R.R., Appellant
• Court: Pennsylvania Supreme Court

27 A. 282

156 Pa. 220

Hoover et al. v. Penna. R.R., Appellant

No. 143

Supreme Court of Pennsylvania

July 19, 1893

Argued April 17, 1893

Appeal, No. 143, July T., 1893, by defendants, from judgment of C.P. Huntingdon Co., Feb. T., 1892, No. 17, on verdict for plaintiffs, A. M. Hoover et al.

Trespass for damages for alleged unlawful discrimination.

At the trial, before FURST, P.J., it appeared that, in 1881, the defendant agreed to transport coal from the Snow Shoe District to the works of the Bellefonte Iron & Nail Company for the sum of thirty cents per ton, provided the nail company consumed at least twenty tons per day. It appeared that the coal was to be tariffed at the usual public rate of fifty cents per ton, and that a rebate of twenty cents per ton net would be repaid by the railroad company to the nail company. In 1889, plaintiffs became retail coal dealers in Bellefonte, and were charged by the railroad company the usual public rate for the transportation of their coal.

Defendants presented the following points:

"1. The agreement to charge a uniform rate to the Bellefonte nail works, made in 1881, was binding on the defendant; and its performance was not an undue and unjust discrimination against the plaintiffs. Answer: So far as the contract being binding on the defendant in 1889 and up to 1891, we are not prepared to affirm the point. This action is not brought to enforce that contract. The question of the contract is therefore, immaterial and irrelevant. We cannot say, as matter of law, that the contract was binding upon the company. Its terms seem to be indefinite, and whether they could or could not have retreated from it is a question that is not important here; and, if it be, we cannot say it was binding upon them. But whether or not the performance of that contract resulted in undue and unjust discrimination against these plaintiffs is a question we submit to you in our general charge. If it operated in a certain manner it would be undue and unjust, and if it did not operate in that manner it would not be undue and unjust. For further answer we refer to our general charge as to the fact of discrimination." [1]

"2. The defendant has made no undue charge or unjust discrimination against the plaintiffs, if they were charged the same as other buyers and sellers of coal. Answer: This point we cannot affirm. The fact involved in the point will be for the determination of the jury." [2]

"3. A lower charge to a manufacturer of nails is not an unjust discrimination to a buyer and seller of coal only. Answer: We cannot affirm that as a principle of law. It may be or may not be, according to the circumstances of the case; but whether, in this case, it resulted in an undue and unjust discrimination must be determined by you under the evidence." [3]

"4. As there was no undue discrimination in furnishing facilities for transportation, treble damages cannot be recovered in this case; and the verdict must be for the defendant." Refused. [4]

"5. Under all the evidence in the case the verdict must be for the defendant. Answer: We refuse this point because, as the case is presented by the plaintiffs, we submit the question of undue and unjust discrimination to you." [5]

Verdict and judgment for plaintiffs for $6,364.20. Defendants appealed.

Errors assigned were (1-5) instructions, quoting them as above; (6) that the judgment of the court below is unlawful. It imposes special damages and is in conflict with § 7 of article 3 of the constitution of this state, which forbids any special law regulating labor, trade, mining, or manufacturing.

Judgment reversed.

David W. Sellers, W. & J. D. Dorris with him, for appellant. -- The agreement to charge a uniform rate to the Bellefonte nail works, made in 1881, was binding on defendant; and its performance was not an undue and unjust discrimination against plaintiffs: Coxe Brothers v. Lehigh Valley R.R 3 Interstate Com. R. 460; Comrs. v. B. & O.R.R., 145 U.S. 275; Hersh v. N. Central R.R., 74 Pa. 182; Munhall v. Allegheny Valley R.R., 92 Pa. 150; Borda v. Reading R.R., 141 Pa. 484.

Appellant in making the contract with the nail company in 1881 was assuredly acting for its interests to secure tonnage, and it could not have intended to give an advantage against plaintiffs, inasmuch as they had not commenced business.

The capacity of a railroad company to increase its business by special rates to shippers is recognized elsewhere: Baxendale v. R.R., 94 E.C.L. 353; Nicholson v. R.R., 94 E.C.L. 366; Fitchburg R.R. v. Gage, 12 Gray, 393; Messenger v. P.R.R., 36 N.J.L. 408.

Defendant has made no undue charge or unjust discrimination against plaintiffs, if they were charged the same as other buyers and sellers of coal. A lower charge to a manufacturer of nails is not an unjust discrimination to a buyer and seller of coal only.

As there was no undue discrimination in furnishing facilities for transportation, treble damages cannot be recovered in this case; and the verdict must be for defendant: Wigton v. R.R., 25 W.N. 574.

The act of 1883 is special with regard to the trade of a common carrier considered as a division of labor or a pursuit, or relatively to the railroad as a special method of domestic transportation. For centuries the pursuit of a common carrier has been private like that of an inn keeper. Each owe duties to the public, but this does not make the pursuit public: Market Co. v. Terminal Co., 142 Pa. 581.

George B. Orlady, for appellee. -- The authorities cited by appellant are in cases entirely different from this.

In Coxe Bros. v. L.V.R.R., 3 Interstate Com. R. 460, the controversy was in regard to freight, different in character as to bulk, kind, value and quantity, and hauled different distances.

In Comrs. v. B. & O.R.R., 145 U.S. 275, it is said the commission is not designed to prevent competition between different roads, or to interfere with the customary arrangements made for reduced fares in consideration of increased mileage, when such reduction does not operate as an unjust discrimination against other persons traveling over the road. To the same effect is Messenger's Case, 36 N.J.L. 407.

In the language of the books, a common carrier exercises a public employment: 1 Bacon Ab. (B) 556.

The business of the common carrier is for the public, and it is his duty to serve the public indifferently. He is entitled to a reasonable compensation, but on payment of that he is bound to carry for whoever will employ him, to the extent of his ability. A common carrier can make what contracts he pleases. The public have no interest in that, but a service for the public necessarily implies equal treatment in its performance when the right to the service is common.

The contract between a railroad company and a shipper that the latter shall pay the regular established rates of freight the same as all other shippers, and that the company shall pay back to him by way of rebate a certain proportion of freight so charged and paid, whereby a less rate of freight is paid than by the public generally, is void and against public policy: I.D. & S.R.R. Co. v. Ervin, 118 Ill. 250; Rice v. R.R., 3 Interstate Com. R. 263; N.E. Express Co. v. M.C.R.R. Co., 57 Me. 188; Hutchinson on Carriers, sec. 297, 353.

The argument that plaintiffs sustained no damages, because they sold their coal at full market price, is without merit. The net cost of the coal would ordinarily be considered, and under this evidence the nail company sold coal in the same market from fifty to seventy-five cents per ton below the market price, which would amount to more than any expected profit on coal: Camblos v. P. & R.R.R., 4 Brewster, 563.

The effect of a reduced rate to a favored dealer is to reduce plaintiffs' profits to the extent of such reduction, making an undue and unjust discrimination: Goodridge v. U.P. Ry. Co., 37 F. 182.

The reasonableness of a freight charge is a question of fact, and in general what amounts to undue preference is a question of fact and not of law: Slater v. Ry., 29 S.C. 96; Hutchinson on Carriers, § 447; Houston & Texas Central R.R. v. Rust, 58 Texas, 98; Root v. Long Island Ry. Co., 114 N.Y. 300; s.c., 11 Am. St. R. 643; Paxton v. Illinois R.R., 6 A. & E.R.R., Cas. 591.

By goods of the same class is meant goods similar in those qualities which affect the risk and expense of carriage; by shipment under the same circumstances is meant that the goods are conveyed under like circumstances, where the route, risk and expenses are, in the opinion of the jury, the same, otherwise not: Paxson v. R.R., 6 A. & E.R.R. Cas. 591.

The spirit and purpose of our act, like the interstate commerce act, requires that, when the circumstances and conditions will fairly admit of it, the charges for like services should be equal, and that violations of the plain black letter of the law, whether in demanding or receiving higher rates and drawbacks, or discriminating in the furnishing of facilities for transportation, should not be profitable to the offending company: Herriman v. B.C.R. & N.R.R., 57 Iowa 187; Shipper v. R.R., 47 Pa. 338; Audenried v. P. & R.R.R., 66 Pa. 370; Wigton v. P.R.R., 25 W.N. 574.

Discriminations based solely on the amount of freight shipped are discriminations in favor of capital, contrary to sound public policy, and a wrong to the disfavored: Kinsley v. B.N.Y & P.R.R., 37 F. 181; Hays v. P.R.R., 12 F. 309; P. & W.C.R.R. v. R.R., 1 Inter St. Com. R. 117; Scofield v. R.R., 43 Ohio 571; Rothschild v. Wabash Ry., 15 Mo. Ap. 242; Vincent v. C. & A.R.R., 49 Illinois, 35; Audenried v. P. & R.R.R., 68 Pa. 370; Messenger v. R.R., 18 Am. R. 758; Cook v. C.R.I. & P.R.R., 75 Iowa 169; Sharpless v. Mayor, etc. of Phila., 21 Pa. 147; N.E. Exp. Co. v. Me. Cent. R.R., 57...