Louisville & N.R. Co. v. Allen

• Decision Date: 18 March 1913
• Citation: 152 Ky. 837,154 S.W. 371
• Parties: LOUISVILLE & N. R. CO. v. ALLEN.
• Court: Kentucky Court of Appeals

154 S.W. 371

152 Ky. 837

LOUISVILLE & N. R. CO. v. ALLEN.

Court of Appeals of Kentucky.

March 18, 1913

On petition for rehearing. Petition overruled.

For former opinion, see 152 Ky. 145, 153 S.W. 198.

PER CURIAM.

Complaint is made in the petition for rehearing that the court erred in holding that all the shipments set up in the petition, for which an undercharge was made, are interstate shipments, when, in fact, some of them are not, and appellee asks that the case be reversed and the railroad company be allowed to recover only for such undercharges as were made on interstate shipments, and for any shipments that were intrastate no recovery should be had or allowed. The petition alleges that each item sued for arose under an interstate shipment. The language is as follows: "Each of said items are interstate shipments." This allegation was not traversed, and, there being no issue upon this point, the court accepted it as a conceded fact that they were interstate shipments, and it is now too late to complain that they were not. The rights of litigants are to be determined by the pleadings and the evidence, or proof, offered in support thereof. It is true counsel for appellee, in brief, insisted that a part of these shipments were intrastate; but, inasmuch as no issue was made upon this point in the pleadings, the statement in brief was not considered.

Petition for rehearing overruled.