Mo., K. & T. R. Co. v. Ashinger

• Decision Date: 19 December 1916
• Docket Number: Case Number: 6926
• Citation: 63 Okla. 120,162 P. 814,1916 OK 1043
• Parties: MISSOURI, K. & T. R. CO. v. ASHINGER.
• Court: Oklahoma Supreme Court

1916 OK 1043

162 P. 814

63 Okla. 120

MISSOURI, K. & T. R. CO. v. ASHINGER.

Case Number: 6926

Supreme Court of Oklahoma

Decided: December 19, 1916

Syllabus

¶0 Carriers--Carriage of Passengers- -"Interstate Passenger."

A. purchased a ticket over defendant's railroad from Oklahoma City, Okla., to Colbert, Okla., intending to proceed from the latter place to Achille, a point within this state. Upon reaching Atoka, Oklahoma, he decided to proceed to Denison, Tex., and tendered defendant the unused portion of his ticket entitling him to passage as an intrastate passenger from Atoka to Colbert and cash fare at the interstate rate from Colbert to Denison, Tex., which was refused, and defendant demanded of him in addition to his ticket one cent per mile from Atoka to Colbert, which, with the ticket and the cash tendered by plaintiff, would equal the published tariffs for one continuous passage from Atoka to Denison. Plaintiff refused to pay this amount and was evicted from the train at Colbert, and sued for damages for the eviction. Held, that plaintiff was an "interstate passenger" from Atoka to Denison, Tex., and was required to pay the rate prescribed by the published tariffs for the journey from Atoka to Denison, and upon his refusal to pay an extra one cent per mile from Atoka to Colbert, in addition to the ticket and the cash fare tendered from Colbert to Denison, defendant was entitled to eject him from its train, and, in the absence of circumstances other than the mere fact of removing him from the train, plaintiff is not entitled to recover.

Error from District Court, Oklahoma County; W. R. Taylor, Judge.

Action by Frank C. Ashinger against the Missouri, Kansas & Texas Railway Company. There was a judgment for plaintiff, and defendant brings error. Reversed.

Clifford L. Jackson, W. R. Allen, and M. D. Green, for plaintiff in error.

Jno. H. Wright and Clarence J. Blinn, for defendant in error.

HARDY, J.

¶1 Defendant in error brought suit for damages for the alleged wrongful act of plaintiff in error in ejecting him from one of its passenger trains. The parties will be referred to as they appeared in the trial court.

¶2 Plaintiff alleges, in substance, that on December 13, 1913, he purchased a ticket from defendant at its Oklahoma City office to Colbert, Okla., and on said day took passage upon one of its trains; that the train upon which he was traveling was several hours late in reaching Colbert, and by reason thereof the hour was too late for plaintiff to transact his business on that day and, believing he would not be able to secure proper hotel accommodations, he decided to proceed from Colbert, Okla., to Denison, Tex., and tendered to defendant the interstate rate of fare from Colbert to Denison, which was refused, and plaintiff was thereupon ejected from the train. Defendant answered denying each and every material allegation, and further alleged that by virtue of an act of Congress April 4, 1887, entitled an act to regulate commerce, commonly known as the Interstate Commerce Act, and the various acts amendatory thereof, it had filed with the Interstate Commerce Commission tariffs and schedules governing the charges for transportation of passengers from points in the state of Oklahoma to points in the state of Texas. and alleged that plaintiff at the time complained of was an interstate passenger, traveling from Oklahoma City to a point in the state of Texas, and the defendant was required by the said laws of the United States to collect from plaintiff the fares prescribed by its said schedule. The case was tried to a jury. which returned a verdict in favor of plaintiff, and defendant prosecutes error.

¶3 The principal question involved is whether plaintiff was an intrastate passenger from Oklahoma City to Colbert, and whether, upon his determination to continue his journey upon the same train from Atoka to Denison, defendant had a right to demand of him the interstate rate of fare to his destination. The trial court submitted to the jury as a question of fact whether defendant was an interstate or an intrastate passenger. Exceptions were saved to the instructions submitting this issue, and defendant requested the court to instruct a verdict in its favor, which request was refused.

¶4 The law is clear that. if plaintiff was an interstate passenger, defendant had the right to demand and receive from him the interstate rate and, upon his refusal to pay same. to remove him from its train. This view of the law was entertained by the trial court, but it is urged that the court misconceived what constitutes an interstate passenger. Section 6 of the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 380 [U. S. Comp. St. 1913, sec. 8569]) requires all carriers to file with the Interstate Commerce Commission tariffs showing rates for the transportation of passengers or property between the points named in such tariff, and the act prescribes penalties for any deviation therefrom, and there is no distinction made between rates prescribed for transportation of passengers and those prescribed for the transportation of property; the purpose and intent of Congress being the same in reference to both classes of tariffs. Speaking of this provision of the law, the Supreme Court of the United States, in Louisville & Nashville R. Co. v. Maxwell, 237 U.S. 94. 35 S. Ct. 494; 59 L. Ed. 853, L. R. A. 1915E, 665, says:

"Under the Interstate Commerce Act, the rate of the carrier duly filed is the only lawful charge. Deviation from it is not permitted upon any pretext. Shippers and travelers are charged with notice of it, and they as well as the carrier must abide by it, unless it is found by the Commission to be unreasonable. S. Covington & Cinn. R. Co. v. Covington et al.. 235 U.S. 537, 35 S. Ct. 158, 59 L. Ed. 350 [L. R. A. 1915F, 792]; Ligon v. St. L. & S. F. R. Co. , 168 S.W. 647: St. L., I. M. & S. R. Co. v. Spriggs , 167 S.W. 96."

¶5 This court has not heretofore had occasion to consider the effect of this legislation as applied to tariffs prescribed for the transportation of passengers, but in a number of cases has had under consideration the question as to whether rates different from those prescribed by such tariffs for the transportation of property might be enforced or confer any rights upon the person to whom said rate was quoted and has invariably held that the rates and tariffs for the transportation of property must be governed by the rates shown upon the published tariffs prepared and filed with the Interstate Commerce Commission as required by said act. St. Louis, I. M. & S. R. Co. v. McNabb, 63 Okla. 87, 162 P. 811; St. L. & S. F. R. Co. v. Pickens. 51 Okla. 455. 151 P. 1055; A., T. & S. F. R. Co. v. Bell, 31 Okla. 238. 120 P. 987, 38 L. R. A. (N. S.) 351.

¶6 In Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498. 31 S. Ct. 279, 55 L. Ed. 310, the Supreme Court affirmed a decree dismissing both bill and cross-bill in a suit to enjoin the enforcement of an order of the Interstate Commerce Commission requiring carriers to desist from giving undue preference to a shipper. E. H. Young, the shipper, had caused certain shipments of cotton seed and cakes to be brought into Texas and shipped to Galveston. where upon arrival they were ground into meal and later sold and shipped to foreign ports. It was contended that the Interstate Commerce Commission had no jurisdiction, as the matter sought to be regulated was intrastate and foreign commerce, and not interstate commerce. The court denied this contention, and in the opinion said:

"It makes no difference, therefore, that the shipments of the products were not made on through bills of lading, or whether their initial point was Galveston or some other place in Texas. They were all destined for export, and by their delivery to the Galveston, Harrisburg & San Antonio Railway they must be considered as having been delivered to a carrier for transportation to their foreign destination; the terminal company being a part of the railway for such purpose. The case therefore comes under Coe v. Errol, 116 U.S. 517, 6 S. Ct. 475, 29 L. Ed. 715, where it is said that goods are in interstate, and necessarily as well in foreign commerce, when they have 'actually started in the course of transportation to another state or been delivered to a carrier for transportation. '"

¶7 In Railroad Commission v. Worthington, 225 U.S. 101, 32 S. Ct. 653, 56 L. Ed. 1004, it was sought to enjoin the enforcement of an order of the State Railroad Commission fixing the rate on certain shipments of coal from the coal fields in Ohio to the ports of Huron and Cleveland on Lake Erie. The railroad company contended that such shipments were interstate. The coal was ordinarily shipped upon bills of lading consigned to the shipper or to another for him and accumulated in large quantities at Huron. At the time of shipment, the final destination had not always been determined, and from time to time the coal was put on vessels and shipped out of the state. The order of the state commission was enjoined on the ground that the shipments were interstate. We quote the following statement from the opinion:

"By every fair test the transportation of this coal from the mine to the upper lake ports is an interstate carriage, intended by the parties to be such, and the rate fixed by the commission, which is in controversy here. is applicable alone to coal which is thus, from the beginning to the end of its transportation, in interstate carriage, and such rate is intended to and does cover an integral part of that carriage, the transportation from the mine to the Lake Erie Port. the placing upon the

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