Kizer v. Texarkana & Fort Smith Railway Company

• Decision Date: 15 April 1899
• Citation: 50 S.W. 871,66 Ark. 348
• Parties: KIZER v. TEXARKANA & FORT SMITH RAILWAY COMPANY
• Court: Arkansas Supreme Court

50 S.W. 871

66 Ark. 348

KIZER v. TEXARKANA & FORT SMITH RAILWAY COMPANY

Supreme Court of Arkansas

April 15, 1899

Appeal from Little River Circuit Court WILL P. FEAZEL, Judge.

STATEMENT BY THE COURT.

This is an action to recover from the railway company an amount which the appellant alleges was exacted of and paid by him for freights on lumber, which he shipped over appellant's road, in excess of the amount stipulated for by him in a contract made by him with the appellee, which contract is as follows, to-wit:

"State of Texas, Bowie county. This agreement, by and between W. L Whitaker, as president, manager and owner of the Texarkana & Ft. Smith Railway Company of the first part, and A. J. Kizer for himself and his associates, heirs, successors and assigns, of the second part, witnesseth:

"1. That the party of the second part, individually or associated with others, in partnership or incorporation as he may elect agrees to construct and maintain a sawmill in Little River county, on the line of said railway, for the manufacture of pine, oak and other kinds of lumber at a point already selected by the party of the second part.

"2. That the party of the second part agrees, in consideration of the foregoing, and for and in behalf of said railway and said company, to furnish cars and ship all lumber manufactured by said mill for said party of the second part, for his heirs successors and assigns of said mill over all routes over which lumber is usually shipped from Texarkana, Texas, and Arkansas, at a rate not to exceed two cents per hundred pounds over the rates charged by the different railway companies from Texarkana.

"This contract to be in force until January 1st, eighteen hundred and ninety-seven (1897) A. D.

[Seal]

"TEXARKANA & FT. SMITH RY. CO.

"By W. L. WHITAKER, President."

Exhibit B to the complaint is an itemized account showing an overcharge, commencing January 12, 1893, and ending December 27, 1894, on 346 cars of lumber, and the entire amount of these overcharges was $ 1,304.15. Summons was issued December 20, 1895.

To the foregoing complaint, an amendment was filed setting forth 146 similar overcharges that were made during the year 1895, and amounting to the sum of $ 566.23.

The defendant's answer denied that it executed the written contract, Exhibit "A" to the complaint, and alleged the same was not its act and deed. It denied that it overcharged the plaintiff upon his said shipments in the sum of 2 cents per hundred or in any amount, and averred that it never charged plaintiff anything except the usual, customary and reasonable rates. That, if said Whitaker ever executed said contract, it was without authority from defendant or its board of directors, and was ultra vires and an illegal act on the part of said Whitaker; that the rate mentioned in said contract was less than the established and reasonable regular rates charged by the defendant for similar services, and that the defendant's regular tariff rates were and are, in all respects, reasonable, and the rate mentioned in said contract was unreasonable, and would constitute an unlawful discrimination against the rest of the public; all of said traffic being interstate, and said contract is void and incapable of enforcement. This answer was verified by W. A Williams, who stated therein that he was the general manager and authorized agent of the defendant, and that he believed the averments therein to be true.

To this answer, an amendment was filed which alleged that the defendant's line of railway between Rankin and Texarkana is an interstate line of road, its portion north of Red River being in Little River county, Arkansas, and the portion south of Red River being in Bowie county, Texas, and all shipments from Rankin to Texarkana are interstate shipments. It denied that it demanded, or that plaintiff paid it, any amount by reason of the shipments mentioned in the original or amended complaint, except what was justly and legally due the defendant, etc.

The facts, as found by the court, sitting as a jury, are as follows, to-wit:

"The court finds that on the 10th day of September 1891, the plaintiff and defendant entered into a contract in writing, whereby plaintiff agreed to construct and maintain a sawmill in Little River county, Arkansas, on the line of defendant's road at a point already selected by plaintiff, for the manufacture of pine, oak and other kinds of lumber, and the defendant agreed on its part to furnish cars and ship all lumber manufactured by said mill for plaintiff over all roads over which lumber is usually shipped from Texarkana, Texas and Arkansas, at a rate not to exceed 2 cents per hundred pounds over the rates charged by the different railroad companies from Texarkana, and that plaintiff has in all things complied with his part of said contract; but that defendant, from and after the 30th of November, 1892, has refused to ship such lumber for plaintiff at the contract price, but has charged plaintiff a greater rate for shipping said lumber than the rate provided by the contract, and that plaintiff was compelled to pay such higher rate, in order to get his lumber shipped. That the contract was executed on the part of the defendant by W. L. Whitaker, who was then the president and general manager of the defendant company, and as such had authority to make freight rates and to execute a contract fixing the rate for shipment of freight; that, at the time the contract was entered into, the defendant's road was not completed to Rankin, the point where plaintiff's mill was located, and that no freight rates had been established in Arkansas for the shipment of freight for that point. That defendant did establish the following rates November 15, 1892, to take effect November 30, 1892 not to exceed three cents per 100 pounds from any point on defendant's road to Texarkana. When said instrument was signed by Whitaker, it was contemplated that plaintiff and Wm. Buchanan and B. T. Estes should be associated with him in the establishment of the sawmill mentioned in said instrument. Buchanan and Estes were directors of the defendant company, and Whitaker was its president and general manager at that time. The contract was written by Estes, who is the plaintiff's father-in-law. The defendant company then had its regularly constituted board of nine directors. There was no action of said board of directors authorizing or ratifying the execution of said contract made by Whitaker, shown by the minutes of the company. In September, 1891, the defendant's railroad extended from Texarkana northward through Bowie county, in the state of Texas, and across Red river past Ogden in Little River county, Arkansas,--a distance of about fifteen miles,--and, at the time of the execution of said contract by Whitaker, sawmills were located on the line of said railroad at Corbin, Texas, and Ogden, Arkansas, and other points. Plaintiff had selected and established the site for his sawmill at Rankin, about twenty-five miles north of Texarkana in 1890 before the contract sued on was executed. The defendant's road was in process of construction northward, and was completed to Rankin in December, 1891. As soon as the road reached Rankin, the plaintiff put in his sawmill there, and by agreement between himself and defendant became, and has ever since been, and still is, the defendant's regular local agent at said town of Rankin, and as such agent had and has control of defendant's local freight and passenger business at that point. When the contract sued on was signed by Whitaker, the defendant's regular tariff rate for transportation from Corbin to Texarkana, charged and collected from the mill owners at Corbin, was $ 10 per car of 30,000 pounds, and when the road reached the different mills the rates for shipments of lumber originating on said railroad at Corbin, Ogden, and other points were regulated, and so understood by the shippers to points on other railroads beyond Texarkana, in accordance with such traffic arrangements as might exist from time to time between the defendant and its connecting carriers at Texarkana. It was customary for the connecting roads leading out of Texarkana to allow the defendant certain pro rates on all shipments of lumber originating on defendant's line, and the defendant gave the shippers on its said line the benefit of such pro rates, when said pro rates amounted to as much as four cents per hundred pounds. The defendant allowed the shippers on its line the same through rates as were enjoyed by the shippers from Texarkana. When such pro rates were less than four cents per hundred pounds, the defendant charged shippers on its line an arbitrary of an amount sufficient to make up said four cents. Lumber cannot be...