Robinson v. Baltimore

• Decision Date: 06 October 1908
• Court: West Virginia Supreme Court
• Parties: Robinson v. Baltimore & Ohio R. Co.

64 W.Va. 406

Robinson

v.Baltimore & Ohio R. Co.

Supreme Court of Appeals of West Virginia.

Submitted June 12, 1908.

Decided October 6, 1908.

1. Common Carrier Schedule of Bates Common Law Action When

Maintainable.

Until a schedule of rates filed and published by a common carrier, pursuant to the act of Congress entitled "An Act to Regulate Commerce," has been by the Interstate Commerce Commission declared excessive and unreasonable, a shipper cannot maintain an action at common law in a state court to recover for the excess of freights exacted on interstate shipments, if th e rates charged were those fixed by such schedule. (p. 408.)

2. Same Common Lav-Action Prior Adjudication.

On the trial of such a common law action, the rates charged being according to such schedule, nothing but the evidence of a prior adjudication of the interstate Commerce Commission that such rates are unreasonable and unjust will justify a judgment for plaintiff. (p. 409.)

3. Interstate Commerce Commission Prior Adjudication Judicial Notice.

The court on such trial will not take judicial notice of such prior adjudication by the Interstate Commerce Commission, but if relied on by the plaintiff, the same must be proven by the record thereof, (p. 410.)

4. Federal Court's, Jurisdiction State Court's Jurisdiction,

While the federal courts have exclusive jurisdiction of all actions based on specific remedies given by the said act of Congress, as under sections 8 and 9 thereof, nevertheless, after such adjudication by the Interstate Commerce Commission a state court has jurisdiction of a suit at common law brought against the carrier to recover the excess of freights paid on interstate shipments, such right of action being preserved to the shipper by section 22 of said act. (p. 411.)

Error to Circuit Court, Marion County.

Clarence D. Robinson brought an action of assumpsit against the Baltimore and Ohio Railroad. Judgment for defendant and plaintiff brings error.

Affirmed

C. H. Leeds, for plaintiff in error.

U.N. Arnett; Jr. and John Bassel, for defendant in error.

Miller, Judge:

The plaintiff sued the defendant in an action of assumpsit to recover $150.00, the aggregate of certain alleged overcharges of freight on interstate shipments of coal loaded from wagons at Fairmont, West Virginia, and consigned to various persons without the State. The case was tried, by the court in lieu of a jury, upon an agreed state of facts, and the finding and judgment of the court thereon being for the defendant, the plaintiff has brought the ease here upon a writ of error.

It is agreed that the rate charged the plaintiff was in accordance with an amended schedule, effective January 26, 1903, providing that certain tariffs should apply only to coal loaded from regular tipples, and that on coal loaded from wagons there should be an additional charge of 50 cents per ton, to be deducted before pro rating with connecting lines, and added to the defendant's proportion. It is agreed that this differential in rates on interstate shipments of coal loaded from wagons into Cars of the defendant was binding on shippers and carrier alike, and that said amended schedule had been regularly published and filed by the defendant with the Interstate Commerce Commission.

There is nothing in the agreement of facts and nothing appears in the record to show that this tariff schedule had at any time prior to the institu ion of this suit been changed or modified in any of the methods or ways provided by the act of Congress of February 4. 1887, and the several acts amendatory thereof, entitled "An Act to Regulate Commerce," 3 U. S. Comp. Stat. 3150.

To reverse the judgment below plaintiff relies upon the following propositions: First, that the differential of 50 cents per ton on coal loaded from wagons, was an unjust and illegal discrimination against him, for which a common law action accrued to him to recover back the excess of freights paid. Second, that such discrimination between rates on coal loaded from tipples and coal loaded from wagons being admitted, the burden was cast upon the defendant to show by competent evidence justification for the excessive rate, and no such justification being shown a prima, facie case was made entitling him to judgment. Third, that inasmuch as it is claimed the Interstate Commerce Commission, in the case of the Glade Coal Company v. Baltimore & Railroad Company, 10 I. C. C. Rep. 224, April, 1904, adjudged the additional charge of 50 cents per ton unreasonable and unjust to the fullest extent and should be abolished, we may judicially know the judgment of the Commission in that case without other proof thereof, and give judgment here accordingly.

With respect to the first proposition it is undoubtedly true that at common law an action does accrue in favor of a shipper against a common carrier, to recover back excessive charges of freight. Such right is as old as the common law itself, and until Congress has acted it is as applicable to interstate and foreign as to local shipments. Western Un. Tel. Co. v. Gall Pub. Co., 181 U. S. 92. It is argued, moreover, that this common law remedy has been preserved by section 22 of the Interstate Commerce Act, providing that "nothing in this act contained shall in any way abridge or alter the remedies now existing, at common law or by statute, but the provisions of this act are in addition to such remedies." The Supreme Court of the United States in the more recent case of Texas & Pae. Ry. Go. v. Abiline Cotton Oil Co., 204 U. S. 426, not referred to by counsel, has given construction to this provision; and, as we believe, to all other provisions of said act applicable to the case now before us. The action there, as in this case, was to recover back alleged excessive freights charged on interstate shipments. After discussing various provisions of said act and the general scope and purpose thereof, and the jurisdiction of the Interstate Commerce Commission.with respect thereto, which need not be repeated here, it was determined, according to the fourth point of the syllabus, that "The Interstate Commerce Act was intended to afford an effective and comprehensive means for redressing wrongs resulting from unjust discriminations and undue preference, and to that end placed upon carriers the duty of publishing schedules at reasonable and uniform rates; and consistently with the provisions of that law, a shipper cannot maintain an action at common law in a state court for excessive and unreasonable freight rates exacted on interstate shipments where the rates charged were those which had been duly fixed by the carrier, according to the act and had not been found to be unreasonable by the Interstate Commerce Commission." All of the shipments involved in this case, according to the agreement...