Jeremy Fuel & Grain Co. v. Denver & R.G.R. Co.

• Decision Date: 03 May 1922
• Docket Number: 3672
• Citation: 207 P. 155,60 Utah 153
• Parties: JEREMY FUEL & GRAIN CO. v. DENVER & R. G. R. CO
• Court: Utah Supreme Court

207 P. 155

60 Utah 153

JEREMY FUEL & GRAIN CO. v. DENVER & R. G. R. CO

No. 3672

Supreme Court of Utah

May 3, 1922

Rehearing denied May 25, 1922.

Appeal from District Court, Third District, Salt Lake County; John F. Tobin, Judge.

Action by the Jeremy Fuel & Grain Company against the Denver & Rio Grande Railroad Company. Verdict and judgment for plaintiff and defendant appeals.

See also 59 Utah 266, 203 P. 863.

AFFIRMED.

Van Cott, Riter & Farnsworth, of Salt Lake City, and J. G. McMurry, of Denver, Colo., for appellant.

Baldwin Robertson and Ball, Musser & Robertson, all of Salt Lake City, for respondent.

WEBER, J. CORFMAN, C. J., and GIDEON, THURMAN, and FRICK, JJ., concur.

OPINION

WEBER, J.

In March, 1919, plaintiff, on its own behalf, and as assignee of 14 other coal shippers, brought suit to recover excessive freight collected by defendant on coal shipped from different railroad stations in Carbon county, Utah to Salt Lake City, Utah by plaintiff and its assignors. The jury returned a verdict in favor of plaintiff in the sum of $ 58,962.80, including interest. Defendant appeals.

Appellant assigns many errors. The most important relate to the pleadings.

The complaint in substance charges that, between November 20, 1914, and March 7, 1917, the defendant collected freight on coal shipped in carload lots by plaintiff and its assignors at the rate of $ 1.60 per ton, and that between those dates, as contained in its printed tariff schedule for the transportation of coal, the legal rate was $ 1.25 per ton; that the charges of $ 1.60 per ton demanded and collected by appellant of respondent and its assignors were unjust, unreasonable, discriminatory, and unlawful to the extent that said charges exceeded the rates and charges as published in the tariff schedule, and the charges demanded and collected from respondent and its assignors were unjust, unreasonable, discriminatory and unlawful to the extent that they exceeded $ 1.25 per ton.

The complaint was demurred to by appellant on the ground of uncertainty, in that from the averments that the rates exacted of the consignees "were unjust, unreasonable, discriminatory and unlawful to the extent that said charges exceeded the sum of $ 1.25 per ton it is impossible to determine in what respect said rates are unjust, unreasonable, discriminatory or unlawful." A motion was also made to strike the parts of the complaint demurred to. It is argued that to say a rate is unreasonable is merely a conclusion, and not a statement of fact, and that appellant was entitled to be apprised in what respect the rates were claimed to be unreasonable. Attached thereto and made a part of the complaint are exhibits showing, among other things, the rates of freight charged, what the rate should have been, and the overcharge on each shipment. To say that an overcharge has been collected is stating an ultimate fact, not simply a legal conclusion. Certainly the appellant was given all the information that was necessary to fully apprise it of what respondent claimed. It has frequently been held that it is sufficient to allege in the complaint that plaintiff was charged a sum in excess of a reasonable rate. Thus it is said in Goodridge v. U. P. R. R. (C. C.) 35 F. 35, that--

"A simple allegation that the plaintiffs were charged a dollar a ton and that they had paid that amount, and that those charges were unreasonable and extortionate, states a good cause of action."

In 10 C. J. p. 454, § 717, the author says:

"At common law, where a carrier makes illegal charges to carry the goods, the consignee's expenses may be recovered back in an action for money had and received. As stated in Cullen v. Seaboard Air Line R. R. Co., 63 Fla. 122, 58 So. 182, 'the gist of the action is that the defendant, upon the circumstances of the case, is obligated by the ties of natural justice to refund the money.'"

Appellant cites Herndon v. Salt Lake City, 34 Utah 65, 95 P. 646, 131 Am. St. Rep. 827; Francis v. Gisborn, 30 Utah 67, 83 P. 571; Chesney v. Chesney, 33 Utah 503, 94 P. 989; Rasmussen v. Sevier, etc., 40 Utah 371, 121 P. 741--as supporting its proposition that the averments in respondent's complaint as to the unreasonableness of the freight charges are mere conclusions. In Herndon v. Salt Lake City, supra, it is held that an allegation in the complaint that the city is charged with a duty of maintaining its streets in a safe condition for public travel is a mere conclusion, and that, while correct as an abstract proposition of law, such a statement in an instruction was inapplicable to the facts developed in that particular case. The other three Utah cases cited are also far from being authorities in support of appellant's proposition in the instant case.

The motion to strike was properly overruled, and it was not error to overrule the demurrer to the complaint as pleading a conclusion of law instead of the facts.

Another attack made by demurrer upon the complaint is that each cause of action, in so far as it is predicated upon the exaction of higher freight rates from the parties than from other shippers, is barred by subdivision 1, of section 6468, Comp. Laws Utah 1917, or, if not barred by that section, is barred by subdivision 1, of section 6470 of the same compilation. Subdivision 1, of section 6468, provides that an action for liability created by statute other than penalty or forfeiture under the laws of this state shall be begun within one year. Subdivision 1, § 6470, provides that an action upon the statute for a penalty or forfeiture where the action is given to an individual, except when the statute imposing it prescribes a different limitation, shall be begun within one year. This suit was instituted March 21, 1919. On December 21, 1917, the government took control of and operated the Denver & Rio Grande Railroad Company. By the Transportation Act 41 Stat. 456), providing for government control and operation of railroads it is provided that the period of federal control shall not be computed as a part of the period of limitation in actions against carriers for causes of action arising prior to federal control. Therefore the period from December 31, 1917, must be excluded from the computation of the period of limitation of the state statute. Standley v. U. S. Railroad Administration (D. C.) 271 F. 794. Excluding the period of federal control, none of the claims for overcharge were barred by the four-year limitation. The trial court, however, permitted no proof of shipments prior to March 31, 1915.

Counsel for appellant argue that at common law no recovery could be had for discrimination in rates, the only question being whether the rate charged was reasonable, and, if reasonable, it had to be paid even though another shipper was given a more favored rate. As supporting their proposition counsel cite 6 Cyc. 499, Penn., etc. v. International, etc., 230 U.S. 184, 33 S.Ct. 893, 57 L.Ed. 1446, Ann. Cas. 1915A, 315; Parsons v. Railroad, 167 U.S. 447, 17 S.Ct. 887, 42 L.Ed. 231; 5 Am. & Eng. Ency. of Law (2d Ed.) 179; Fitchburg Ry. Co. v. Gage, 12 Gray (Mass.) 399; Menacho v. Ward (C. C.) 27 F. 529, 23 Blatchf. 502, 27 F. 529. The great weight of American authority is not in accord with appellant's contention. 10 C. J. 471, § 746.

"Independently of any constitutional or statutory regulation on the subject, the carrier is bound to carry at an equal rate for all customers for substantially similar service and under substantially similar conditions." 10 C. J. 489, § 775.

Referring to the doctrine that it has been held by some authorities that it is not necessary that the carrier shall serve all at the same rate of compensation, it is said in 4 R. C. L. § 35, p. 556:

"But although a number of courts have inclined towards this doctrine, there has been a marked tendency to give a more stringent interpretation to the rule, and it has been asserted that the duty of a common carrier towards the public contemplates fair treatment to all, and that therefore the carrier cannot discriminate unjustly between its patrons, and so cannot properly carry for one at an unreasonably low price, or gratis, when by so doing it would be acting unjustly toward another, even if it is ready to carry for such other at a reasonable charge. The duty which the common carrier owes to all cannot be discharged if it is allowed to make unequal preferences, and thereby prevent or impair the enjoyment of the common right, and the common-law rule should therefore be construed as meaning not only that all...