Service & Wright Lumber Co. v. Sumpter Valley Ry. Co.

Decision Date30 September 1913
Citation135 P. 539,67 Or. 63
PartiesSERVICE & WRIGHT LUMBER CO. v. SUMPTER VALLEY RY. CO.
CourtOregon Supreme Court

In Banc.

Appeal from Circuit Court, Baker County; William Smith, Judge.

Action by the Service & Wright Lumber Company against the Sumpter Valley Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

The plaintiff, a corporation, brings this action against the defendant railway corporation, alleging that the latter was a common carrier during the period between September 12, 1903 and May 27, 1906, engaged in the transportation of lumber logs, and other timber products between Whitney and Baker City, in Baker county, Or., and intermediate points. It charges that during the period named, and in order to market the products of a mill it operated, plaintiff was compelled to and did ship over the defendant's railroad 879 cars loaded with lumber, laths, pickets, and posts, aggregating 9,132 1/2 tons, from what is known as Deer Creek Spur Intersection to Baker City, a distance of 23 1/2 miles, and that, for the transportation of said mill products between the points named, the defendant demanded, charged, and compelled the plaintiff to pay, and the defendant collected and received at plaintiff's cost, freight at the rate of 8.51 cents per ton per mile; the same being $2 per ton for said entire distance of 23 1/2 miles. The plaintiff, further complaining, avers that the charges mentioned were excessive and unreasonable and more than those demanded by the defendant from competing shippers over the same road for shipments of similar character, class of freight, and cost of transportation during the same time. It places the just and reasonable freight charges that should have been imposed and paid at not to exceed 2.8 cents per ton per mile, or 65.8 cents per ton for the entire distance hauled. The complaint further alleges rates charged to other competitors: One for logs from Whitney to South Baker, 46.4 miles, at 25 cents per ton; another for logs from Stoddard's Spur to Baker, 26 3/4 miles, at 62 1/2 cents per ton; a third for lumber from Sumpter to Baker, 31.7 miles, $2 per ton; fourth, on lumber from Bennett's Siding to Baker, 10.3 miles 70 cents per ton; and, fifth, on lumber from Salisbury Siding to Baker City, 9.8 miles, 70 cents per ton. Finally, summing up, the plaintiff demands judgment against the defendant for $12,255.90 as the excess charged over and above what was reasonable to demand and receive for the service mentioned.

A motion to strike out all the allegations respecting the hauling of logs on the ground that the same was immaterial was overruled. The court also denied a motion to require the plaintiff to state in his complaint whether the action brought was one for an excessive and unreasonable freight charged or whether it was based upon the discrimination made between charges exacted by the defendant from the plaintiff and those demanded by the defendant of other shippers on the line. A demurrer was interposed assigning as causes that the complaint does not state facts sufficient to constitute a cause of action; that it sets forth in one count two separate causes of action, one for excessive freight charges exacted from the defendant, and another arising from discriminations between the plaintiff and other shippers; third, that it appears from the complaint that the cause of action is founded on sundry shipments during the period named, which the plaintiff has set forth in one count, whereas it should be required to state them in separate counts as arising from each shipment and bill of lading therefor; and, lastly, that it appears from the complaint that the cause of action accrued more than three years prior to the filing of the original complaint, and that it was barred, therefore, by the statute of limitations. This demurrer was also overruled. The answer admitted the amount of freight in question to be 9,132 1/2 tons but stated that it was contained in 880 cars consisted of lumber only, 877 cars of which were destined for points without the state of Oregon and were delivered by plaintiff to the Oregon Railroad & Navigation Company for carriage to its destination, upon which the defendant received its regular freight charges from the connecting carrier, to wit, 10 cents per 100 pounds. The complaint is otherwise traversed in material particulars.

The substance of the first affirmative defense is that, as to the 877 cars which were destined for transportation and delivery to consignees outside of the state of Oregon, the defendant was employed as a carrier of interstate commerce; that, as required by the laws of the United States, it had promulgated and kept open for public inspection schedules showing rates fares, and charges for the transportation of interstate commerce, among which the defendant had established a rate of 10 cents per 100 pounds between all Sumpter Valley points and Baker City, Or., including Deer Creek Spur Intersection which was a Sumpter Valley point; that the rate named was a reasonable one, and by reason of the requirements of the law the defendant was compelled to and did charge that rate for the carriage of the plaintiff's lumber. The second affirmative defense was in terms much like the first except that it was so framed as to amount to a bar to the jurisdiction of the state court, alleging it to be a controversy over which that tribunal had no authority. The third affirmative defense was in substance that on May 6, 1907, the plaintiff corporation was dissolved in pursuance of a resolution of its board of directors, and that the Secretary of State had issued a certificate of dissolution under that date, since which time the plaintiff has had no legal existence and had no power to sue or be sued. Lastly the defendant avers in substance that the matter complained of constituted interstate commerce, and that by the act of Congress approved February 4, 1887, and amendments thereto, the plaintiff should have presented his claim for excessive freight charges to the Interstate Commerce Commission within two years from the time the same accrued; and that by reason of its failure to thus present its claim to the Commission all its rights, if any, were barred. The new matter of the answer is challenged by the reply, which pleading states that all matters complained of happened and accrued before the dissolution of the plaintiff corporation. It is further alleged that the carriage of plaintiff's property ended, so far as the defendant was concerned, at Baker City, where the goods were delivered to the plaintiff; the defendant relinquishing all control or management thereof to the plaintiff, who afterwards at its own risk transferred the same to another carrier, substantially contending that the transaction with the defendant was merely preliminary and preparatory to the actual shipment of lumber to other states. A jury trial resulted in a general verdict in favor of the plaintiff, totaling $3,345.72. From a judgment for this amount in favor of the plaintiff, the defendant appeals.

Zera Snow, of Portland, and John L. Rand, of Baker, (Snow & McCamant, of Portland, on the brief), for appellant.

Samuel White, of Portland, and Robert Service, of Baker (Gustav Anderson, of Baker, on the brief), for respondent.

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

The first question for consideration arises on the motion of the defendant to strike out the allegations about log rates paid by other parties and an exception to an instruction given by the court on that point as follows: "Evidence has been introduced pertaining to the matter of the freight rates charged by the defendant on logs as well as lumber, and it is for you to determine whether those commodities are of such like kind and character of freight as would admit of a similar or relative adjustment of a rate between them, and for this purpose you may consider, together with all other evidence touching that feature, the classification referred to as Western Classification, and defendant's modifications thereof, if any, introduced in evidence, and which it is stipulated was adopted by defendant and in force during the period in question, and whether or not these commodities were in direct competition; and, if you find that the said commodities were similar in kind and class and also competitive, then you are instructed that such rates should be so adjusted between them as not to favor one at the expense of the other, if thereby the rate on one becomes unreasonable as to the shipper of the other."

There were put in evidence, without objection, various tariff sheets of the defendant, each stating substantially that it was issued subject to the Western Classification and current rules and regulations of the company governing the transportation of freight, and providing that, where tariff and classification conflicted, the tariff would govern. Also without objection, the Western Classification of freights was introduced, so far as the same relates to timber products, among the items of which logs are classified as subject to the lumber tariff rates. It thus appears that the defendant treated logs and lumber as belonging to the same class of products, and this was tantamount to an admission on its part, proper to go to the jury upon the question of the reasonableness of the rates charged for lumber. The log is raw material in the manufacture of lumber. If one producer hauls his logs over the defendant's road to a given point and there manufactures them into lumber, he necessarily competes with another millman who first saws logs into lumber and afterwards ships the finished product over the same line of road. In such an instance it is possible to prescribe so low a rate on logs on the one hand and so...

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14 cases
  • Service v. Sumpter Valley Ry. Co.
    • United States
    • Oregon Supreme Court
    • February 26, 1918
    ...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. second trial in the circuit court again resulted in a judgment for the plaintiff, and on appeal the action was dismissed on the ground tha......
  • Oregon-Washington R. & Nav. Co. v. McColloch
    • United States
    • Oregon Supreme Court
    • March 17, 1936
    ... ... filed with the Public Service Commission of Oregon, since ... replaced by the ... the case of Service Lumber Co. v. Sumpter Valley Railway ... Co., 67 Or. 63, ... ...
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    • United States
    • Missouri Supreme Court
    • December 22, 1919
    ...Burgess v. Freight Bureau, 13 Interst. Com. Com'n. R. 668, 680; Jennison v. Dixon, 133 Minn. 268, 158 N. W. 398; Service Lumber Co. v. Railway Co., 67 Or. 63, 76, 135 Pac. 539; Railroad Co. v. Manufacturing Co., 51 Ill. App. 151; Andalman v. Railway, 153 Ill. App. 169; Railroad Co. v. Cross......
  • Maeder Steel Products Co. v. Zanello
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    • November 20, 1923
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