Priebe v. Southern Ry. Co.

• Decision Date: 07 November 1914
• Docket Number: 677
• Parties: PRIEBE v. SOUTHERN RY. CO.
• Court: Alabama Supreme Court

66 So. 573

189 Ala. 427

PRIEBE v. SOUTHERN RY. CO.

No. 677

Supreme Court of Alabama

November 7, 1914

Sayre and De Graffenried, JJ., dissenting in part.

Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.

Action by H. Priebe against the Southern Railway Company. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals. Reversed and remanded.

Ross Blackmon, of Anniston, for appellant.

Knox Acker, Dixon & Sterne, of Anniston, for appellee.

SAYRE J.

We understand count 2 of appellant's original complaint to be a count in special assumpsit intending a recovery for appellee's breach of its promise to refund payments made by appellant on account of freight charges on certain shipments of meal. Demurrer to this count was sustained, and the ruling is assigned for error.

The theory of appellant's case, as appeared in the further progress of the trial, was that appellee, having transported corn (whether by interstate or intrastate shipments does not appear in the count) to appellant's mill under an agreement for a "milling in transit" privilege, had unlawfully exacted an additional charge when appellant tendered the milled product for further shipment. In pursuit of this theory the count, by way of showing the consideration for appellee's alleged promise, averred that appellant shipped corn over appellee's line to his "plant" at Jenifer, Ala., and that these shipments were made under a tariff schedule of freight rates which applied to "milling in transit" shipments; and the count proceeds:

"It was agreed and understood that the defendant would reship the meal for the plaintiff, without any extra charges therefor, to certain points designated in said agreement. Plaintiff avers that he ground the corn shipped under the contract with the defendant into meal, and reshipped the same to points designated by the terms of said contract, to which points the defendant was bound, by the terms of this contract, to haul or transport said meal or carry said meal without extra or additional charges."

The promise, for the breach of which appellant sued, not importing or implying a consideration (rather, the implication is of an unlawful agreement; that is, if we may travel outside the count and assume that appellee was a common carrier), it was necessary that the count should expressly state the particular consideration upon which it was founded. This count does not show what shipments were made under the alleged "milling in transit" privilege, nor the ultimate destination of such shipments. We may infer, but it is not averred, that appellant had paid lawful charges according to the through rate in force on the corn from the point of origin to the place of ultimate destination, and, in the absence of such averment, it does not appear, except by inconclusive inference, which the court will not draw in favor of the pleader, that the amounts appellee promised to repay were charges in excess of the lawful rate. For this, and other reasons which might be assigned, we think the demurrer was properly sustained.

Moreover where a plaintiff seeks after nonsuit to review the entire proceeding in the trial court, the doctrine of error without injury is applied to rulings on the pleadings to an extent perhaps that has not been practiced in cases where an appeal is taken from final judgment in favor of the defendant. Andrews v. Hall, 132 Ala. 320, 31 So. 356; Tobias v. Josiah Morris & Co., 132 Ala. 267, 31 So 498; Zirkle & Moore v. Jones, 129 Ala. 444, 29 So. 681; Brown v. Commercial Fire Ins. Co., 86 Ala. 189, 5 So. 500. Now in the present case the claim was merely of a pecuniary nature and was founded on a past, completed, executed consideration, and it was sufficient to declare upon the common indebitatus counts, as plaintiff did in addition to the special count under consideration. Where there is no satisfactory reason for introducing a special count, and it appears there was none in this case, and the cause of action may be proved under a common count, as was the case here, since there was nothing for appellee to do but repay the amounts promised, the common counts alone should be used. 1 Chit. Pl. (16th Ed.) bot. pp. 377, 378. Appellant restated his case in an amended special count with averments which seem to have satisfied appellee's objection, without undertaking thereby the burden of unnecessary proof, and had besides his common counts. There was therefore no harm in the ruling in any event.

Appellant found difficulty in proving that the corn from which his meal was milled had been shipped under a "milling in transit" contract, and the terms of such contract, as it was necessary for him to do in order to establish his alleged right to an abatement and return on the charges paid when the milled product was sent forward to its ultimate destination. He argues that the rulings below amounted to a denial of the validity of all such contracts. Shippers are not entitled, as a matter of right, to mill grain in transit and forward the milled product under the through rate in force on the grain from the point of origin to the place of ultimate destination; on the contrary, milling in transit is a special privilege allowable at designated points, and for which extra compensation is usually exacted by carriers under the control and direction, in the case of interstate shipments, of the Interstate Commerce Commission. Diamond Mills v. Boston & Maine Railroad Co., 9 Interst.Com.R. 311. We do not find that the trial court ruled against the validity of the contract for the "milling in transit" privilege alleged by appellant to have constituted the consideration for appellee's promise to make a return payment. As we read the bill of exceptions, the court sustained appellee's objections to evidence offered by appellant with a view to proving his alleged contract, not on the ground that proof of such contract was irrelevant, immaterial, or forbidden by law, but on the ground that appellant failed to adduce a competent instrument of proof. As going a part of the way to prove a "milling in transit" privilege at Jenifer applicable to the shipments in controversy, appellant offered in evidence a printed "Tariff Schedule," purporting to emanate from appellee, and showing that "milling in transit" was allowed by appellee at Jenifer on shipments of corn from points at which appellant's shipments had originated. The court appears to have sustained an objection taking the ground that the effort was to prove that which was of record with the Interstate Commerce Commission otherwise than by a certified copy of the record. In this there was reversible error.

That the fact may have been proved so will not be disputed, for the Interstate Commerce Commission Act prescribes that every common carrier, subject to its provisions, shall print and keep open to public inspection schedules showing the rates and fares and charges for transportation of passengers and property which any such common carrier has established and which are in force at the time upon its route; and every such carrier shall file with the Commission copies of its schedules of rates, fares, and charges which have been established and published in compliance with the act. 3 Fed.Stat.Ann. 827. The...