Thomas v. The Chicago Burlington & Quincy Railroad Company

• Decision Date: 12 January 1929
• Docket Number: 28,421
• Court: Kansas Supreme Court
• Parties: J. M. THOMAS, Doing Business as the THOMAS GRAIN COMPANY, Appellee, v. THE CHICAGO BURLINGTON & QUINCY RAILROAD COMPANY, Appellant

273 P. 451

127 Kan. 326

J. M. THOMAS, Doing Business as the THOMAS GRAIN COMPANY, Appellee, v. THE CHICAGO BURLINGTON & QUINCY RAILROAD COMPANY, Appellant

No. 28,421

Supreme Court of Kansas

January 12, 1929

Decided January, 1929.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. APPEAL AND ERROR--Jurisdictional Amount--Interpretation of Federal Transportation Act. Under section 566 of the civil code, R. S. 60-3303, this court has appellate jurisdiction of an action for the recovery of money regardless of the amount in controversy where the propriety of the judgment necessarily depends upon a correct interpretation of the federal transportation act.

2. CARRIERS--Rates--Direct Line--Evidence. The evidence adduced was sufficient to support the finding of the trial court that the Santa Fe railway line via Gower and Henrietta to Kansas City was a direct line no less than its line via Atchison and Holliday, within the fair meaning of the rule prescribed in the railway carriers' official tariffs for ascertaining the correct rate in the absence of a specified rate from point of origin to destination.

3. SAME--Rates--Recovery of Excess--Attorney Fees. Under express authority of the interstate commerce act, an attorney's fee may be awarded to a litigant in addition to the judgment in his behalf against a carrier in an action for the recovery of damages for the wrongful exaction of a rate in excess of that authorized by the official tariffs of the carriers.

4. COMMERCE--Jurisdiction of State Court--Recovery of Excess Charge. A state court has jurisdiction of an action for damages against a railway carrier for the exaction of a rate in excess of its own official schedules, where the reasonableness of the scheduled freight rate is not assailed and where no question affecting the power or administrative policy of the interstate commerce commission is involved.

H. M. Langworthy, Byron Spencer, Frank H. Terrell and Robert G. Merrick, all of Kansas City, Mo., for the appellant; H. J. Nelson, of St. Joseph, Mo., of counsel.

Grant W. Harrington, of Kansas City, for the appellee.

OPINION

DAWSON, J.:

This is an appeal from a judgment of the district court of Wyandotte county awarding damages and attorney's fee to plaintiff because of an alleged overcharge of freight rates for transporting a carload of corn from Bartley, a shipping point on the Burlington railway in southwestern Nebraska, to Gower, a local point on the Santa Fe railway about ten miles southeast of St. Joseph, Mo.

The corn was originally billed for shipment from Bartley to St. Joseph, but was reconsigned to Gower. Plaintiff prepaid the freight charges from Bartley to St. Joseph according to the published tariffs, 20 1/2 cents per hundredweight, and was compelled to pay an additional 7 cents when the corn was reconsigned to Gower.

Defendant sought to justify this rate on the ground that the authorized tariff schedules do not specify any rate from Bartley to Gower, and that the railway company was therefore justified in adding the local rate of 7 cents per hundredweight from St. Joseph to Gower.

Plaintiff's claim is based on the fact that the proportional rate from St. Joseph, Mo., to Kansas City, Mo., is 4 cents per hundredweight, that Gower is an intermediate point between St. Joseph and Kansas City, and the published tariff schedules provide that where the more distant point takes a less rate the latter shall be considered as the correct proportional rate to the intermediate point. The rule prescribed by the tariff, and which is the nub of this lawsuit, is thus stated in Santa Fe No. 5588-M and I. C. C. No. 9317:

"Rates to or from points not shown in this tariff will, in the absence of specific rate from point of origin to destination, be made by adding to the rates shown in this tariff the rates shown in other tariffs lawfully on file with the interstate commerce commission, but if the rate so made exceeds the rate to or from a point beyond on the same direct line or route, as shown in this tariff, the latter will apply."

On the issues thus joined the evidence showed that the Santa Fe railway has two rail lines from St. Joseph to Kansas City, one on the east and another on the west side of the Missouri river, but neither line goes directly to Kansas City. Gower, the destination of this corn shipment, is on the Santa Fe line which runs easterly from St. Joseph, through Gower, for a considerable distance to Henrietta on the Santa Fe main line and thence southwesterly to Kansas City, a total distance of 113 miles. The other line runs west from St. Joseph to Atchison, thence southerly through Kansas to Holliday, and thence easterly on the Santa Fe main line to Kansas City, a total distance of 92 miles.

The pertinent tariff schedules and rules were introduced in evidence, and witnesses of apparent experience and competence on the somewhat abstruse subject of freight rates explained their meaning. It was shown that where there is no through rate specified from one point to another (as from Bartley, Neb., to Gower, Mo.) the rate covering such shipment is the lowest combination via the route taken, but where that combination exceeds the rate to a more distant point on the same direct line or route as shown on the tariff the latter rate is the correct one. One item of an official tariff gave the rate from Bartley to St. Joseph as 20 1/2 cents per hundredweight. Another item gave the rate from St. Joseph to Gower at 7 cents, and from St. Joseph to Kansas City "on shipments originating at points not covered by through rates at 4 cents per cwt." Appropriate references were repeatedly made in the tariff to the rule quoted above, which declared that where a rate had to be arrived at by computation and "the rate so made exceeds the rate to or from a point beyond on the same direct line or route, as shown in this tariff, the latter will apply."

An interpretation of this rule and particularly of the meaning of the phrase, "to a point beyond on the same direct line or route," brought a clash of expert opinion testimony, that of the defendant being that it meant the shortest route, which would be the 92-mile line via Atchison and west of the Missouri river to Holliday and thence east to Kansas City. On the other hand, the evidence for plaintiff was that the direct line or route meant one where there was "no back haul." It was also developed in cross-examination of an expert witness for defendant that occasionally traffic like this corn shipment, originating on other lines and delivered to the Santa Fe at St. Joseph, did move over the longer east-side route through Gower to Kansas City, and that when it did the rate was 4 cents per hundredweight, just as it was over the shorter west-side line. Another fact of considerable evidential significance was shown by the circumstance that after this controversy arose the tariff rule was amended thus:

"Rates between St. Joe on the one hand and Kansas City on the other will apply when routed through Holliday, Kan., and the line north to Wilder only."

Defendant's requested findings of fact and declarations of law were refused. The trial court found generally and specially for plaintiff and gave judgment accordingly. Some of the court's special findings read:

"1. That the shipment of corn, in evidence, originated at Bartley, Neb., and moved from there to Saint Joseph, Mo., over the line of the Chicago, Burlington & Quincy Railroad Company.

"2. That the shipment was at that point reconsigned to Gower, Mo., and that said shipment moved from Saint Joseph, Mo., to Gower, Mo., over the line of the Atchison, Topeka & Santa Fe Railway Company.

"3. That the Atchison, Topeka & Santa Fe Railway Company has a line from Saint Joseph, Mo., to Kansas City, Mo., via Atchison and Leavenworth, Kan.

"4. That said line is the direct line between Saint Joseph, Mo., and Kansas City, Mo.

"5. That said Atchison, Topeka & Santa Fe Railway Company has another line between Saint Joseph, Mo., and Kansas City, Mo., via Gower and Henrietta, Mo., which said line is also the direct line between Saint Joseph, Mo., and Kansas City, Mo."

Defendant appeals, urging various points which will be noted in the order of their presentation.

Although the judgment for plaintiff was only for $ 30.20, and an attorney's fee of $ 50, an appeal will lie to this court seeing that the cause and its proper determination necessarily depended upon matters of federal law, and our appellate jurisdiction extends to all cases involving "the constitution, laws or treaties of the United States," regardless of the amount in controversy. (R. S. 60-3303; 3 C. J. 389; 2 R. C. L. 35.) This point has been incidentally noted in Mo. P. Rly. Co. v. Kimball, 48 Kan. 384, 29 P. 604; Coghlan v. Williams, 69 Kan. 144, 76 P. 394; Griggs v. Hanson, 86 Kan. 632, 634, 121 P. 1094; Harrington v. Missouri P. Rld. Co., 123 Kan. 35, 254 P. 379.

Error is assigned on the trial court's finding of fact that the Santa Fe line from St. Joseph to Kansas City via Gower and Henrietta on the east side of the Missouri river was a direct line. But it cannot be denied that there was substantial testimony to support that finding, and it was only in the single matter of actual mileage that it was any less a direct route than the one through Atchison and Holliday on the west side of the Missouri river. An examination of any good railroad map makes it none too easy to declare that the west route with its two crossings of the Missouri river is less devious and more direct than the east route, except in the one matter of shorter mileage. The rulings of the interstate commerce commission on this subject are entitled to great...