The Louisville, Evansville And St. Louis Consolidated Railroad Company v. Wilson

• Decision Date: 27 October 1892
• Docket Number: 15,887
• Citation: 32 N.E. 311,132 Ind. 517
• Parties: The Louisville, Evansville and St. Louis Consolidated Railroad Company v. Wilson et al
• Court: Indiana Supreme Court

32 N.E. 311

132 Ind. 517

The Louisville, Evansville and St. Louis Consolidated Railroad Company v. Wilson et al

No. 15,887

Supreme Court of Indiana

October 27, 1892

From the Vanderburgh Superior Court.

Judgment affirmed.

A. P Humphrey, A. Gilchrist and C. A. De Bruler, for appellant.

W Hamill, J. S. Buchanan and C. Buchanan, for appellees.

OPINION

Coffey, J.

This case is here for the second time. See Louisville, etc., R. R. Co. v. Wilson, 119 Ind. 352, 21 N.E. 341.

Upon a return of the case to the court below, the appellees filed an amended complaint consisting of seven paragraphs. There was a verdict against the appellees on the first, second and third paragraphs of the complaint, so they need no further notice. The appellant contends that the superior court erred--

First. In overruling its demurrer to the fifth, sixth and seventh paragraphs of the complaint.

Second. In overruling its motion for a new trial.

The fifth paragraph of the complaint alleges, substantially, that the appellees, as partners, were engaged in the business of purchasing and shipping railroad ties; that the appellant owned and operated a railroad running by and through the stations and towns of Tennyson, Chandler, Gentryville and Ferdinand, in Indiana; that there was no other railroad through or near these places for the transportation of freight; that after the construction of the appellant's road the appellees engaged in the business of purchasing railroad cross-ties and shipping the same from the above-named stations to the city of Evansville; that the regular and reasonable charge and tariff rate of freight for cross-ties from those stations to the city of Evansville was fourteen dollars per car, and that such price had been charged from the date of the construction of the road until the 1st day of January, 1887, and that such price and rate of freight is still the amount charged for the shipment of cross-ties from these stations to Evansville; that such sum was the full and reasonable charge for such freights, and was and has been so recognized by the appellant; that prior to the 1st day of January, 1887, there were several parties engaged in the purchase and shipment of cross-ties from said stations; that after the 1st day of January, 1887, the appellant wrongfully and unjustly charged as freight for cars loaded with cross-ties the sum of twenty-four dollars for each car from said stations to the city of Evansville; that such charge was unreasonable and excessive, and destructive of the business of the appellees; that at the time such increased rate of freight was charged by the appellant, appellees had at said stations and along the line of said road 100,000 cross-ties which had cost them twenty-five thousand dollars: that said ties could not be shipped by any other railroad, as appellant knew; that the appellees had contracted for the sale of the ties and were compelled to fill and complete such contract; that they were unable to purchase ties at any other place to fill the same, and were compelled to ship the same over the appellant's road; that the appellant collected from the consignees of said ties the sum of twenty-four dollars freight on each car so shipped by the appellees from said stations to the city of Evansville; that they shipped three hundred and fifty-four cars of said ties between the 1st day of January, 1887, and the 1st day of August of that year from the above named stations to the city of Evansville to fill their contract and dispose of such cross-ties; that the excess of freight so charged and received by the appellant was twenty-eight hundred dollars; that at the same time the appellant was so charging the appellees the sum of twenty-four dollars per car it was charging other parties for similar shipments the sum of fourteen dollars only; that before the commencement of this suit the appellees demanded of the appellant said sum of twenty-eight hundred dollars, which it refused to pay, and thereupon they demanded of the appellant twenty-eight hundred dollars damages, which it refused to pay.

The sixth paragraph of the complaint is similar to the fifth, except that it contains the further allegations that the appellant entered into a contract with one Dickason, whereby Dickason was permitted to ship cross-ties over the appellant's road at fourteen dollars per car-load, each load containing two hundred ties, while it charged the appellees and all others the sum of twenty-four dollars per car for like shipments; that the contract with Dickason was made for the purpose of giving him a monopoly of the business of purchasing and shipping cross-ties on the line of the appellant's road; that by reason of such unjust discrimination the business of the appellees was destroyed, to their damage in the sum of twenty-eight hundred dollars.

The seventh paragraph is substantially the same as the fifth, except that it contains the further allegation that it received receipts from the appellants for the cross-ties shipped, which the appellants called bills of lading, but which the appellees refused to accept as such, but did receive them as receipts for ties shipped.

It is claimed by the appellant that the court erred in overruling the demurrer to the fifth and seventh paragraphs of the complaint because it appears from each of these paragraphs that the payments therein set forth were voluntary payments. It is said by counsel, in their brief, that no kind of extortion is shown, no pretence that the appellant refused to carry the cross-ties or refused to deliver them unless the rates charged were paid; nor is there any claim that the appellees were ignorant of the facts stated in these paragraphs at the time the freight was paid.

On the other hand, it is contended by the appellees that payments made to a railroad company, or other common carrier, for overcharges for carrying freight are not voluntary payments, for the reason that the shipper and carrier do not stand upon an equality.

The only authorities cited by the appellant holding that payment without protest to a common carrier for an overcharge is a voluntary payment are the cases of Evershed v. London, etc., R. W. Co., L. R. 3 Q. B. 134, and DuBose v. Georgia, etc., R. R. Co., 50 Ga. 304.

We are of the opinion, however, that the decided weight of authority is that the payment of an overcharge of freight to a railroad company engaged as the common carrier of goods is not a voluntary payment within the ordinary meaning of that term.

In the case of Heiserman v. Burlington, etc., R. W. Co., 16 American and English Railroad Cases, 46, which was an action to recover for overpayment of freights, the court said: "Nor need the plaintiff, in a case brought to enforce such obligation, show objection or protest prior to the payment made in excess of reasonable compensation. These rules are founded upon the consideration that railroad companies are public carriers, and those who employ them are in their power and must bow to the rod of authority which they hold over consignors and consignees of property transported by them. * * * The law does not require objection or protest to the payment of unjust charges for the reason that they would be vain, being addressed to those who occupy the commanding position of power to enforce obedience to their requirements. For another reason, they are not required. Those who do business with the railroads never come in contact with the officers who possess authority to fix or abate rates of charges; indeed, they usually hardly know their names or where to find them. * * * These considerations take the case from the operation of the familiar rule which forbids recovery on account of payments voluntarily made without objection or protest."

In the case of Chicago, etc., R. R. Co. v. C. V. & W. Coal Co., 79 Ill. 121, it was said by the Supreme Court of Illinois: "In such a case, where the coal company has no other outlet for its coal, and the railroad company exacts more freight than, by the terms of the contract, they are entitled to, the coal company should be considered as under a kind of moral duress, and the payment by them of the freight demanded, under such circumstances, is not to be considered voluntary, and they would have the right to sue upon the contract, and recover back the excess of freight paid over the contract rate."

In the case of Mobile, etc., R. W. Co. v. Steiner, 61 Ala. 559, which was an action to recover for over-payment of freights on the transportation of cotton, the court said: "The nature of the business considered, the shipper does not stand on equal terms with the carrier in contracting for charges for transportation, and if the shipper pays the rates established in violation of law by the carrier, rather than forego his services, such payment is not voluntary in the legal sense, and the shipper may maintain his action for money had and received to recover back the illegal charges." Indeed there seems to be but little conflict in the authorities in this country holding that the payment to a railroad company engaged in the business of common carrier of an overcharge of freight for goods transported over the road of such company, is not a voluntary payment as the law interprets that term. Peters, Ricket & Co. v. Marietta, etc., R. R. Co., 18 Am. & Eng. R. R. Cases, 492; Parker v. Great Western R. W. Co., 49 M. & G. 253; Addison Con., 1043; Railroad Co. v. Lockwood, 84 U.S. 357, 17 Wall. 357, 21 L.Ed. 627; Beckwith v. Frisbie, 32 Vt. 559; West Virginia, etc., Co. v. Sweetzer, 25 W.Va. 434; Lafayette, etc., R. R. Co. v. Pattison, 41 Ind. 312.

In the case of Lafayette, etc., R. R. Co. v. Pattison supra, which was an action to recover back an excessive payment of freight made under an agreement that such...