N. H. Blitch Co. v. Atlantic Coast Line R. R.

The opinion of the Court was delivered by Mr. Chief Justice Jones. These four cases, involving the same question, were tried together by con'sent. The suits were brought to recover for alleged overcharges for icing the refrigerator cars in which plaintiffs during April, May, and June 1910 made numerous shipments of vegetables over defendant’s lines, from Meggetts, S. C. to various markets in other States. The complaint set out in the record is very long and contains a statement with reference to each shipment, but it will be sufficient to state the first mentioned as typical of the others. After alleging that the Atlantic Coast Line Railroad Company is a corporation both under the laws of South Carolina and Virginia, and that Armour Car Lines is a corporation under the laws of New Jersey and that plaintiff, N. K. Blitch Co. is a domestic corporation, the complaint states: 5. ‘‘That heretofore, on the 26th day of April, A. D., 1906, the plaintiff above named delivered to the defendants *114 200 crates of cabbage at Meggetts, S. C., which was received by the defendants for transportation to Boston, Mass., there to be delivered to A. F. Young & Co. for sale for the account of the plaintiff. 6. “That the said cabbage were received by the defendants from the plaintiffs, and placed in what is known as a refrigerator car, furnished by -the Armour Car Tines, and was so carried to the place of destination. That the defendants, except the Armour Car Tines, received from the plaintiff the sum of one hundred and eighty dollars ($180) for freight for the carriage of said cabbage; and that defendants charged and received from the plaintiff fifty-nine dollars ($59) for icing said car; that the actual cost of icing said car ■ was twenty-six 25-100 dollars ($26.25), and that defendants charged and received from the plaintiff the sum of thirty-two 75-100 ($32.75) in excess of the actual cost of such icing. 7. “That the defendants are now justly due and owing the plaintiff the sum of thirty-two 75-100 dollars ($32.75), the same being amount received from the plaintiff by the defendants'in excess of the actual cost of icing said car.” The complaint further alleged— 170. “That the icing charges on all of the cars above mentioned -were paid at the place of destination; that the same had to be paid before the defendants would deliver the said vegetables, and was not paid voluntarily and with full knowledge of the facts. . That the .plaintiff alleges it was not aware, at the time it paid said icing charges, of the costs incurred in connection therewith; that the plaintiff was in no position to decline to pay the charges so demanded by the defendants. That plaintiff further alleges that the icing charges were unreasonable and unjust. 171. “That the charges paid for freight on all of the cars above mentioned included the charge for the use of the refrigerator cars, and that the icing of said cars was necessary for the protection of the vegetables in the course of *115 transportation, and the plaintiff alleges that it was under no obligation to pay more for the icing of the cars than the actual cost of same; that the defendants had no right to make any profit on the ice which was used by them for the preservation of the plaintiff’s property, and that they had no right to charge more than, the actual cost of such ice, for that, in furnishing the ice, they acted for and on behalf of the plaintiff, and had no right to make any profit thereon.. 172. “That by reason of the overcharge in icing the said cars, as above set forth, the plaintiff has been damaged in the sum of nineteen hundred and seventy 19-100 dollars ($1,970:19 ).” The defendant foreign corporation demurred on the ground that the Court had no jurisdiction of the subject of the action in that an action to recover for an unreasonable charge for icing for an interstate shipment was exclusively within the jurisdiction of the United States Courts. The Circuit Court, in an opinion herewith reported, overruled the demurrer and from that order this appeal is taken. . We approve the conclusion of the Circuit Court in overruling the demurrer. It will be observed that the complaint does not allege an unreasonable and unjust exaction for services in transportation based upon a rate established for an interstate shipment by the Interstate Commerce Commission, and there is no presumption that the defendants had filed with the Commission a schedule of freight rates, including charges for icing, and that such rates were promulgated as required by the interstate commerce act. In this stage of the record, therefore, the case of Texas and Pacific v. Abilene Cotton Oil Co. 27 Sup. Ct. Rep., 350, commented upon in Southern Ry. Co. v. Tift, 27 Sup. Ct. Rep. 709, is not authority for the contention of appellant, for in that case it appeared by the answer and evidence submitted that the rates were charged according to the schedule of rates filed under the interstate commerce act. In such circumstances it was held that the *116 State Court was without jurisdiction, and that a shipper seeking reparation predicated upon the unreasonableness of an established rate, must invoke redress as provided in section 9 of the interstate commerce act, by complaint primarily to the Commission or in certain cases by suit in any district or Circuit Court of the United States of competent jurisdiction. The Court declared that such must be the law, “because if the power existed in both Courts and the Commission to originally hear complaints on this subject there might be a divergence between the action of the Commission and the decision of a Court. In other words the established schedule might be found reasonable by the Commission in the first instance and unreasonable by the Court acting originally and thus a conflict would arise which would render the enforcement of the act impossible.” To the same effect is Baltimore & O. R. Co. v. U. S. 30 Sup. Ct. Rep. 164, in which reference was made to the amendatory act of June 39, 1906. The common law right of the shipper to recover of the carrier for unjust and unreasonable exactions for transportation is fully recognized in the Abilene case above cited when the assertion of such right may be made consistently with the due enforcement of the interstate commerce act. As we see no such inconsistency in the present state of the record we sustain the jurisdiction of the State Court. The judgment of the Circuit Court is affirmed.