Thompson v. Richards

• Decision Date: 04 March 1944
• Docket Number: 35899.
• Citation: 158 Kan. 178,146 P.2d 359
• Parties: THOMPSON v. RICHARDS.
• Court: Kansas Supreme Court

146 P.2d 359

158 Kan. 178

THOMPSON v. RICHARDS.

No. 35899.

Supreme Court of Kansas

March 4, 1944

Rehearing Denied April 17, 1944.

Syllabus by the Court.

Where federal laws are involved in issue to be determined such as in action to recover undercharges on an interstate freight shipment, Supreme Court has jurisdiction to entertain appeal regardless of amount or value in controversy. Gen.St. 1935 60-3303.

The only freight charge that may lawfully be collected on an interstate freight shipment is one computed in conformity with freight tariffs duly published and filed in conformity with federal law. Interstate Commerce Act, § 6(7), 49 U.S.C.A. § 6(7).

In action by railroad to recover undercharge on interstate freight shipment, neither good faith of parties when erroneous charge was made nor giving of receipt showing payment in full is a defense. Interstate Commerce Act § 6(7), 49 U.S. C.A. § 6(7).

In action by railroad to recover undercharges on an interstate freight shipment, consignee's evidence as to rates applicable on different routings and as to charges collected on other shipments was inadmissible. Interstate Commerce Act § 1 et seq., 49 U. S.C.A. § 1 et seq.

In action by railroad to recover undercharge on interstate shipment of sheep, where freight bill had been computed at rate of 48 cents a hundred pounds but railroad's evidence that correct rate was 60 cents a hundred pounds was unchallenged, railroad was entitled to a directed verdict regardless of settlement by railroad's agent with consignee on basis of lower rate. Interstate Commerce Act § 6 (7), 49 U.S.C.A. § 6(7).

Where evidence reasonably admits of only one conclusion and clearly shows the right of plaintiff to a verdict, plaintiff's motion for directed verdict should be sustained.

1. This court has jurisdiction to entertain an appeal, regardless of the amount or value in controversy, in cases where laws of the United States are involved in the issue to be determined.

2. The only rate which may lawfully be charged or collected on an interstate shipment of freight is the rate published and filed in conformity with federal law.

3. Neither the good faith of the parties in collecting or paying a freight charge computed on a rate lower than the lawful rate nor the giving of a receipt showing payment "in full" is a defense in an action to recover on the undercharge.

4. Where the evidence of the plaintiff reasonably admits of only one conclusion and clearly shows that he is entitled to judgment and the defendant offers no evidence on the controlling fact at issue, a motion by the plaintiff for a directed verdict should be sustained.

5. Record examined in an action by a rail carrier to collect from a consignee the amount of an undercharge on an interstate shipment of freight, and held: Defendant's evidence constituted no defense and upon plaintiff's evidence plaintiff was entitled to judgment.

Appeal from District Court, Mitchell County; W. R. Mitchell, Judge.

Action by Guy A. Thompson, trustee, Missouri Pacific Railroad Company, against F. J. Richards to recover an undercharge on an interstate freight shipment. Judgment for defendant, and plaintiff appeals.

Reversed with directions to enter judgment for plaintiff.

HOCH SMITH, and WEDELL. JJ., dissenting.

Ralph M. Hope, of Atchison (W. P. Waggener, O. P. May, and B. P Waggener, all of Atchison, and R. L. Hamilton, of Beloit, on the brief), for appellant.

Ralph H. Noah, of Beloit, for appellee.

HOCH Justice.

This was an action by a rail carrier to recover an undercharge on an interstate freight shipment. The defendant prevailed and the plaintiff appeals.

Three carloads of sheep were loaded at Eagle, Colorado, freight prepaid to Tennessee Pass, Colorado, where they were unloaded and put on pasture for several months. From Tennessee Pass they were shipped to the Denver market, where they were purchased by appellee, F. J. Richards, and consigned to him at Scottsville, Kansas. Under a provision of the tariff rules which permits sale in transit they were moved to Scottsville on a through bill of lading from Tennessee Pass. The consignee, who was liable for all unpaid freight, thus received the benefit of the through rate which was considerably lower than a combination of the local rates from Tennessee Pass to Denver and from Denver to Scottsville.

When the sheep reached Scottsville the local agent of the carrier did not know how to compute the total freight charges but after some inquiry advised the appellee that the correct rate was 48 cents a hundred pounds. On December 2, 1939, the appellee paid the freight bill of $360.30 computed at the 48 cent rate, and the agent marked the freight bills "Paid in full." Subsequently the carrier advised the consignee that a mistake had been made, that the correct, published rate was 60 cents a hundred, and made demand for $90.09, the balance alleged to be due under the correct rate. There is no controversy as to the weight of the shipment or as to the mathematical computations. Relying upon the fact that he had paid the amount of freight originally charged and had been given a receipt in full, the consignee refused to pay the amount demanded and this action to collect the alleged undercharge of $90.09 followed. The answer was in substance a general denial.

Trial was had before a jury in January, 1943. At the close of the evidence the plaintiff demurred to the defendant's evidence on the ground that it stated no defense to the cause of action and moved for a directed verdict. The demurrer and the motion were overruled.

The jury brought in a general verdict for the defendant and answered special questions as follows:

"Question No. 1: What do you find was the correct rate per hundred pounds for the shipment involved herein from Tennessee Pass, Colorado, to Scottsville, Kansas? A. We don't know.

"Question No. 2: What do you find was the rate per hundred pounds which was collected from the defendant for the shipment involved herein from Tennessee Pass, Colorado, to Scottsville, Kansas? A. 48¢.

"Question No. 3: What was the weight of the sheep shipped? A. 75063 pounds."

The plaintiff asked that the jury be required to go out again and bring in a definite answer to the first question. The motion was denied. Motion for a new trial was made and overruled, and this appeal followed. Appellant's principal contention is that the court erred in overruling the demurrer and the motion for a directed verdict.

Before considering the appeal on its merits we note that appellee renews his contention--heretofore made in a motion to dismiss, which was overruled--that the appeal should be dismissed because less than $100 is involved. The contention is not good. The freight shipment was interstate in character. Laws of the United States being involved, this court has jurisdiction to entertain the appeal, regardless of the amount plaintiff seeks to recover. Section 60-3303, G.S.1935; Thomas v. Chicago, B. & Q. R. Co., 127 Kan. 326, 329, and cases there cited, 273 P. 45l, 64 A.L.R. 322; 2 Am.Jur., § 38-40; 4 C.J.S., Appeal and Error, §§ 56-60, pp. 141-144.

The only freight charge that may lawfully be collected is the one computed in conformity with the freight tariffs duly published and filed as required by law. It is provided in the Interstate Commerce Act, U.S.C.A. Title 49, § 6(7), that:

"No carrier, unless otherwise provided by this chapter, shall engage or participate in the transportation of passengers or property, as defined in this chapter, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this chapter; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time; nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs."

There being only one lawful charge, the carrier has no option in the matter. In case of undercharge the carrier must take steps to collect the balance due, and failure to do so subjects it to severe penalties. It is well settled that neither the good faith of the parties when the erroneous charge was made nor the giving of a receipt "in full" is a defense in an action to recover on the undercharge. Pittsburgh, C., C. & St. L. R. Co. v. Fink, 250 U.S. 577, 40 S.Ct. 27, 63 L.Ed. 1151; New York Central & H. R. R. Co. v. York & Whitney Co., 256 U.S. 406, 41 S.Ct. 509, 65 L.Ed. 1016; 83 A.L.R. 245, 268; Atchison, T. & S. F. Railway Co. v. Wagner, 102 Kan. 817, 172 P. 519, L.R.A.1918D, 1105; Farrar v. Perkins, 122 Kan. 141, 251 P. 440.

In cases such as here presented this rule may seem a harsh one, but any other rule would open the door to evasion of the law and bring back the old practice of rebates, preferences and discriminations under which fair competition was stifled and artificial economic advantage given to favored localities and sections of the country. To put an end to that sort of thing was the primary purpose behind the enactment of the Interstate Commerce Act, 49 U.S. C.A. § 1 et seq.

There was no dispute, in the instant case, as to the amount paid by the consignee, nor as to the facts and circumstances incident thereto. There remained only one primary fact to be determined. What was the correct rate?...