Pittsburgh & Lake Erie R.R. Co. v. South Shore R.R. Co.

• Decision Date: 17 March 1919
• Docket Number: 172
• Citation: 107 A. 680,264 Pa. 162
• Parties: Pittsburgh & Lake Erie R.R. Co., Appellant, v. South Shore R.R. Co
• Court: Pennsylvania Supreme Court

107 A. 680

264 Pa. 162

Pittsburgh & Lake Erie R.R. Co., Appellant, v. South Shore R.R. Co

No. 172

Supreme Court of Pennsylvania

March 17, 1919

Argued January 8, 1919

Appeal, No. 172, Oct. T., 1918, by plaintiff, from judgment of C.P. Allegheny Co., July T., 1914, No. 1835, on certificate for defendant in case of Pittsburgh & Lake Erie Railroad Company v. South Shore Railroad Company. Reversed.

Assumpsit to recover $3,392.94 for repairs on locomotives. Before REID J.

Certificate and judgment for defendant for $65,000. Plaintiff appealed.

Error assigned, among others, was in refusing instructions for plaintiff.

For reasons above stated the judgment is reversed and a venire facias de novo awarded.

George E. Shaw, of Reed, Smith, Shaw & Beal, with him John J. Heard for appellant. -- The claim of the South Shore Railroad Company being for compensation for services alleged to have been performed on behalf of the line carrier in the transportation of interstate and State commerce is subject to and controlled by the acts of Congress regulating interstate commerce, and no action may be maintained under the law: Armour Packing Co. v. United States, 209 U.S. 56; Texas & Pacific Ry. v. Abilene Cotton Oil Company, 204 U.S. 426; Kansas City Southern Ry. v. Albers Commission Company, 223 U.S. 573; United States v. D., L. & W.R.R., 152 F. 269; Interstate Commerce Commission v. Reichmann, 145 F. 235; United States v. A., T. & S.F. Ry., 163 F. 111; Chesapeake & Ohio Ry. Co. v. Standard Lumber Co., 174 F. 107; Cent. R.R. of N.J. v. Mauser, 241 Pa. 603; Penna. R.R. Co. v. Clark Bros. Coal Mining Co., 238 U.S. 456.

The status of the South Shore Railroad Company is res adjudicata in this court: Pittsburgh & Lake Erie R.R. Company v. Clinton Iron & Steel Company, 258 Pa. 338.

If the act to regulate commerce does not apply and the subject-matter of this suit is one concerning which the parties were free to contract then this action is premature, because the parties agreed to abide by a decision of the Interstate Commerce Commission.

W. S. Dalzell, of Dalzell, Fisher & Hawkins, for appellee, cited: Malvern F. & V.R.R. Co. v. Chicago R.I. & P. Ry. Co., 182 F. 685.

Before STEWART, MOSCHZISKER, FRAZER, WALLING and SIMPSON, JJ.

OPINION

MR. JUSTICE WALLING:

This appeal by plaintiff is from judgment entered for defendant on a balance of $65,000 certified by the jury in an action of assumpsit. Plaintiff's railroad extends from Pittsburgh to Youngstown, Ohio, and at the former city connects with various manufacturing establishments, including the Clinton Iron & Steel Company, of which defendant is a plant facility, although chartered as a railroad company: Pittsburgh & L.E.R.R. Co. v. Clinton I. & S. Co., 258 Pa. 338. Defendant had two engines and six freight cars, also divers sidings and switches located on the land of the steel company and extending to its different departments. Plaintiff's tracks connected with those of defendant at what is known as interchange track in Point Bridge yard, where defendant took the cars and distributed them about the plant as needed; also gathered up cars for the outward shipment and delivered them to plaintiff at the same point; in other words, did a general switching business about the plant including the transfer of cars coming in and going out. This embraced cars engaged in both interstate and State (intrastate) traffic. For many years ending in 1907, plaintiff paid defendant a satisfactory price for such service; then a controversy arose with reference thereto, and, after much discussion and correspondence, it was agreed that defendant should be paid according to a certain schedule fixed by plaintiff until the matter was adjusted by the Interstate Commerce Commission, when the balance if any for the intervening time would be paid in full. That schedule fixed $2.25 per car for iron ore, $1.75 for coke, $1.60 for limestone and a flat rate of $2 for each car handled for a subsidiary plant. In 1911 plaintiff without notice to defendant filed this schedule of rates with the commission; but the matter was never brought before that body for adjustment, and in May, 1914, plaintiff cancelled the agreement and refused further payment for the terminal service, while performing it for other like plants. Shortly thereafter plaintiff brought this suit on an admitted claim of $3,392.94, and interest, for repair work; to which defendant interposed a set-off of $93,542.30, claimed as the difference between the cost of the terminal service and the amount received therefor since 1907. This was based on a charge of $2.75 for each car handled. However, at the trial the evidence tended to prove that the actual cost of such service was $2.46 per car, and defendant reduced the claim to that amount. Its case depended in part on parol evidence and the trial judge submitted to the jury, inter alia, the question of the fair and reasonable cost of such service. The jury found for the defendant a certified balance of $65,000, on which judgment was entered. That was a considerable deduction from the full amount of the set-off computed on the basis of $2.46 per car. A part of defendant's claim as itemized was for the movement of cars engaged in interstate and the balance for those engaged in State commerce, but as the case was tried and submitted to the jury, they were blended as one claim, and so far as can be judged the same amount was allowed for each car regardless of the kind of commerce in which it was engaged.

As to the interstate shipments the matter is controlled by federal statutes, which seek to protect the public by securing uniformity of rates and privileges. See Texas & Pac. Ry v. Abilene Cotton Oil Co., 204 U.S. 426. Under the Act of Congress to Regulate Commerce, as amended June 29, 1906, the interstate carrier must file with the commission and also publish schedules of all rates and tariffs including terminal charges, and the act also provides that, "No carrier . . . shall engage or participate in the transportation of passengers or property . . . unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this act . . . nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such...