Service v. Sumpter Valley Ry. Co.

• Decision Date: 26 February 1918
• Citation: 88 Or. 554,171 P. 202
• Parties: SERVICE ET AL. v. SUMPTER VALLEY RY. CO. [*]
• Court: Oregon Supreme Court

171 P. 202

88 Or. 554

SERVICE ET AL. v. SUMPTER VALLEY RY. CO. ^[*]

Supreme Court of Oregon

February 26, 1918

In Banc.

Appeal from Circuit Court, Baker County; Dalton Biggs, Judge.

Action by Robert Service and others, substituted for the Service &amp Wright Lumber Company, against the Sumpter Valley Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed.

The Service & Wright Lumber Company, a corporation, commenced an action against the defendant railway company on September 11 1909, to recover what the former claimed was an excess over what was reasonable which was charged to and paid by it on lumber transported by the defendant for the plaintiff between Deer Creek siding and Baker, in Baker county, Or. From an adverse judgment the defendant appealed, and secured a reversal in an opinion reported in 67 Or. 63, 135 P. 539. A second trial in the circuit court again resulted in a judgment for the plaintiff, and on appeal the action was dismissed on the ground that as the record disclosed the plaintiff corporation had been dissolved more than five years prior to filing the amended answer stating that fact. 81 Or 32, 149 P. 531, 152 P. 262, 158 P. 175. At this juncture Robert Service and others, urging substitution for the first time, applied to this court to be substituted for the original plaintiff corporation which had been dissolved as hereinafter stated, and by an ex parte affidavit gave as grounds therefor that all the debts of the concern had been paid, and that they were its only stockholders. On this showing they were substituted, and their motion for a rehearing in this court was granted. The judgment of the circuit court was again reversed for the reasons stated in the first opinion.

We here set down the chronology of this litigation as follows: The alleged cause of action in favor of the original plaintiff corporation accrued May 27, 1906; the resolution of its stockholders to dissolve it was adopted May 3, 1907; the secretary of state issued his dissolution certificate May 7 1907; the original action was commenced September 11, 1909; the first judgment of the circuit court was rendered November 3, 1911; the defendant's first appeal was perfected April 29, 1912; the period of five years from the dissolution of the corporation ended May 7, 1912; the original reversal of the cause on appeal to this court was rendered September 30, 1913; the second circuit court judgment was entered January 9, 1914; the action was dismissed in this court June 15, 1915; the petition of Robert Service and others to this court to be substituted was allowed October 22, 1915, and the cause was set for rehearing; the original opinion of September 30, 1913, was adopted and the judgment was reversed June 20, 1916; the judgment from which the present appeals were taken was rendered in the circuit court December 22, 1916, and both parties appealed.

John L. Rand, of Baker, and W. Lair Thompson, of Portland (Snow, Bronaugh & Thompson, of Portland, on the briefs), for appellant. Samuel White, of Portland, and Robert Service, of Baker, for respondents.

BURNETT J. (after stating the facts as above).

On the appeal of the defendant there are three questions to be treated: (1) Whether and to what extent the question of interstate commerce is involved in this case; (2) the correctness of the circuit court's instruction to the jury, to the effect that, if they found for the plaintiff, they should allow interest from May 27, 1906, to the date of the verdict; and (3) whether the stockholders of the original plaintiff corporation have been properly substituted therefor so as to maintain this action.

So far as the first question is concerned it is embodied in the defendant's assignments of error numbered 3, 4, and 5. Under the third assignment it contends that the court erred in refusing to give this instruction:

"The jury is instructed that, eliminating the four local shipments to which your attention has been directed, the bills of lading issued by the defendant for all shipments prior to the 5th of May, 1905, were contracts for interstate transportation, and that under the provisions of the act of Congress approved February 4, 1887, and the acts amendatory thereof, and the decisions of the federal courts defining the meaning of these acts, plaintiffs cannot recover for any freight paid to the defendant for the transportation called for in said bills of lading."

The fourth and fifth assignments predicate error upon the court's refusal to give instructions 21 and 22 requested by the defendant and here set down as follows:

"(21) The plaintiff Robert Service has testified that the bulk of the contents of 800 of the cars which came down over the line of the defendant from Deer Creek spur to Baker was transferred on arrival at Baker to broad gauge cars in which the lumber left the state of Oregon for shipment to consignees from whom the Service & Wright Lumber Company had received orders. I instruct you that the carriage of the shipments of lumber referred to in the foregoing testimony was interstate commerce, and that under the provisions of the act of Congress approved February 4, 1887, and the acts amendatory thereof and the decisions of the federal courts defining the meaning of the said acts of Congress, plaintiffs cannot recover for any freight which may have been paid on any of the said 800 cars.

"(22) The plaintiff Robert Service has testified that the bulk of the contents of 800 of the cars which came down over the line of the defendant from Deer Creek spur to Baker was transferred on arrival at Baker to broad gauge cars in which the lumber left the state of Oregon for shipment to consignees from whom the Service & Wright Lumber Company had received orders. I instruct you that under this evidence the bulk of the contents of the 800 Sumpter Valley cars referred to which were transferred to the broad gauge cars and went out of the state of Oregon were carried in interstate commerce, and that plaintiffs cannot recover in this case for any freight which the Service & Wright Lumber Company may have paid for the carriage from Deer Creek spur to Baker of the bulk of the said 800 cars so transferred. I instruct you that the provisions of the act of Congress of date February 4, 1887, regulating interstate commerce, and the acts amendatory thereof and the decisions of the federal courts, defining the meaning of these statutes preclude the recovery by plaintiff of any freight so paid by the Service & Wright Lumber Company."

At all the times mentioned in this litigation the defendant owned and operated a railway from Baker, in Baker county, Or., to a terminus west of that town, all within the state of Oregon. The shipments in question were made from what is known as Deer Creek spur to Baker. It is conceded that four carloads of lumber never went beyond the latter point, but were disposed of to the local trade there. Some evidence is in the record also to the effect that at least the bulk of the contents of 800 of the defendant's cars was immediately shipped out of the state by another railroad passing through Baker, and that when the cars of the defendant arrived there laden with the lumber of the Service & Wright Lumber Company the agents of that corporation took charge of the lumber and loaded it upon cars procured by it from the other railroad company upon which it was shipped out of the state. Mr. Robert Service, the principal witness for the plaintiff, testified to the effect that in every instance when any of the lumber in question arrived at Baker in the defendant's cars it was set or spotted on the track where it was unloaded or where portions of it could be transferred, and, as soon as it was spotted, the plaintiff corporation by its agents took charge of it, had complete control of it, sold it in Baker if it wished, or shipped it wherever it pleased, and did with it as it wanted to. There is in evidence, as shown by the bill of exceptions, a letter of the defendant company written by its general passenger and freight agent addressed to the original plaintiff corporation as follows: "Baker City, Oregon, April 24, 1905.

"Service & Wright Lumber Co., Baker City Oregon--Gentlemen: Replying to yours of the 20th inst.: The transfer of lumber from our cars to standard gauge cars, and the selection of those standard gauge cars for such transfer purposes, has been entirely with yourselves for a long time past. You have made your shipments from mill on Deer creek to Baker on our cars. At Baker you have made requisition upon O. R. & N. Co. for such standard gauge cars as you saw fit, and when such cars were designated to us by O. R. & N. Co. yardmaster, we have spotted them convenient to your lumber, on our cars, for transfer. When the transfer was made by you, we were notified and the standard gauge car loaded was and has been set over on O. R. & N. Co. tracks by our switch crew. We have assumed no responsibility whatever for the lumber in any manner, except to move it over to O. R. & N. tracks when notified by you to do so, after its arrival at Baker.

"We are under no obligations to transfer lumber, or any other shipment, as a matter of fact, from our tracks to O. R. & N. Co. or vice versa. We agree to responsibility for its arrival at Baker station, but our responsibility then ceases. We have no contract with the O. R. & N. Co. by which we can demand any certain kind or number of cars, or at any particular time or day. We cannot, and will not, agree to assume any responsibility for lumber shipments transferred from our cars to standard gauge cars, or for losses or damages arising from overweight, underweights, less than minimum charge shipments, or from any cause whatever, from the time such shipments are received by us at Baker

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