The Rock Milling & Elevator Company v. The Atchison

• Decision Date: 08 July 1916
• Docket Number: 19,768
• Citation: 98 Kan. 478,158 P. 859
• Court: Kansas Supreme Court
• Parties: THE ROCK MILLING & ELEVATOR COMPANY, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

158 P. 859

98 Kan. 478

THE ROCK MILLING & ELEVATOR COMPANY, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 19,768

Supreme Court of Kansas

July 8, 1916

July 8 1916

Decided July, 1916.

Appeal from Reno district court; FRANK F. PRIGG, judge. Opinion on rehearing filed July 8, 1916. Reversal adhered to. (Original opinion filed January 8, 1916, not reported.)

Judgment reverse and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. COURTS--State--Jurisdiction--Interstate Shipments--Action for Repairing Cars. State courts have jurisdiction in actions to recover the amounts due shippers of interstate freight for repairing cars to put them in condition for holding the shipment, where the maximum charge for such repairs is fixed by the tariff on file with the interstate commerce commission.

2. LIMITATION OF ACTIONS--Accrual of Cause--Cost of Repairing Cars. The three-year statute of limitations applies to actions to recover the cost of repairing cars to put them in condition to receive the property to be shipped therein, and the statute begins to run on each item when the shipment is made.

3. RAILROADS--Tariff--Repair of Cars--"Actual Cost of the Same." The words "actual cost of the same" in the following tariff provision, "When cars furnished by carriers named below for grain or other loading require repairing in order to insure against leakage in transit, and material necessary for this repair is furnished by the shipper, the carrier will pay the actual cost of the same, but not to exceed eighty cents per car," include the cost of the material and labor necessary to repair, but do not include the cost of inspecting or cleaning cars or the cost of attaching grain doors.

4. APPEAL AND ERROR--Harmless Error--Evidence--Admission. The admission in evidence of "Santa Fe Cooperage Circular No. 1" did not prejudice any substantial right of the defendant.

William R. Smith, Owen J. Wood, Alfred A. Scott, all of Topeka, and William Osmond, of Great Bend, for the appellant.

F. Dumont Smith, of Hutchinson, for the appellee.

OPINION OPINION ON REHEARING.

MARSHALL, J.

An opinion was delivered in this case on January 8, 1916, but has not been officially published. The plaintiff filed a motion for a modification of the opinion. The defendant filed a motion for a rehearing. A rehearing was granted.

In this action the plaintiff recovered judgment against the defendant in the sum of $ 3076.20 for repairing cars furnished the plaintiff by the defendant in which to ship grain. The defendant appeals.

The action was begun February 25, 1913. Between December 7, 1908, and May 15, 1911, the plaintiff received from the defendant 5127 cars in which to ship bulk grain. All these cars were used in interstate shipments. Before loading the cars it was necessary for the plaintiff to repair them to prevent grain leaking therefrom. The petition asked for 80 cents for repairing each car. The jury allowed 60 cents for material and labor. From December 3, 1908, to December 28, 1910, the defendant's tariff contained the following provision:

"When cars furnished by carriers named below for grain or other loading require repairing in order to insure against leakage in transit, and material necessary for this repair is furnished by the shipper, the carrier will pay the actual cost of the same, but not to exceed eighty cents per car."

On December 28, 1910, the tariff was amended to read:

"When cars furnished for bulk grain or other bulk freight loading require repairing in order to insure against leakage in transit, and the material necessary for repairing is furnished by the shipper, the line furnishing the car will pay for the cost of the repairs, but not to exceed eighty cents per car."

During all of the times of the transactions involved in this action the tariff contained this provision:

"When cars furnished for grain or other loading requiring interior doors are not so equipped by the railroad company, and such doors are furnished by the shipper, the actual cost thereof, but not to exceed $ 1.20 per car, will be paid by the carrier."

During this time Rule 78 of the interstate commerce commission was in effect. This rule is:

"A carrier may not lawfully reimburse shippers for the expense incurred in attaching grain doors to box cars unless expressly so provided in its tariff." (Conference Rulings, Bulletin No. 2.)

1. The first contention is that the court did not have jurisdiction of the matters involved in this controversy. The defendant's argument is that every matter where there is a rate concerned or a tariff to be construed or a rate founded on a tariff to be adjudicated, must come before the interstate commerce commission or a federal court.

Section 8 of the interstate commerce act reads:

"That in case any common carrier subject to the provisions of this act shall do, cause to be done, or permit to be done any act, matter, or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this act required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this act, together with a reasonable counsel or attorney's fee, to be fixed by the court in every case of recovery, which attorney's fee shall be taxed and collected as part of the costs in the case." (24 U.S. Stat. at Large, ch. 104, p. 379.)

Section 9 in part reads:

"That any person or persons claiming to be damaged by any common carrier subject to the provisions of this Act may either make complaint to the Commission as hereinafter provided for, or may bring suit in his or their own behalf for recovery of the damages for which such common carrier may be liable under the provisions of this Act, in any district or circuit court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt."

Section 22 in part reads:

"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."

In Penna. R. R. v. Puritan Coal Co., 237 U.S. 121, 35 S.Ct. 484, 59 L.Ed. 867, the court said:

"Construing §§ 8 and 22, however, in connection with the statute as a whole, the Act to Regulate Commerce is both declaratory and creative, and while shippers are given new rights, existing causes of action are preserved and the jurisdiction of state courts is not superseded, in cases in which the decision does not involve the determination of matters calling for the exercise of administrative power and discretion of the Commission or relate to subjects over which exclusive jurisdiction is given to the Federal courts.

"While the Federal courts may have exclusive jurisdiction of a suit brought to declare that a rule of practice promulgated by the carrier is unfair, a suit for damages occasioned by the violation or discriminatory enforcement of the carrier's rule, fair on its face and not attacked as unfair, does not involve administrative questions but only those of fact; and even though for damages arising in interstate commerce, such a suit is not within the exclusive jurisdiction of the Federal courts, but may be prosecuted either in those courts or in the state courts." (Syl. PP 2, 3.)

This principle was recognized and followed in Ill. Cent. R. R. v. Mulberry Coal Co., 238 U.S. 275, 35 S.Ct. 760, 59 L.Ed. 1306.

In Penna. R. R. v. Clark Coal Co., 238 U.S. 456, 35 S.Ct. 896, 59 L.Ed. 1406, the method or rule for the distribution of cars to coal-mining companies was called in question. In the syllabus to this case we find this language:

"Whether the rule or method of car...