Agee & Co. v. L. & N. R. R.

PER CURIAM. Complainants are wholesale provision dealers conducting business in a house near -Railroad Avenue in Birmingham, and have been receiving and shipping away goods over a railroad track located adjacent to that house, and operated by the defendant, the Louisville & Nashville Railroad Company. For some years next before the 7th day of May, 1903, that company had continously served persons having business houses located along that track, by delivering' at their respective houses cars of freight and cars to be freighted and shipped, and had so served complainants from the spring of 1902 to the 7th day of May, when, having a few days theretofore given notice of its intention to do so, it discontinued that service to complainants but continued furnishing it to others along that track. Besides other facts set forth in the bill the foregoing are alleged and are not denied in the answer except as to< the capacity in which the railroad company operated the track referred to. As to that, the answer avers the track was owned by and Ava's on lands of complainants and persons other than defendant, and that the car service thereon was not rendered by the railroad company as a common carrier. [354] One theory upon which complainants seek relief is that the alleged refusal of car service, constitutes unlawful and injurious, discrimination. Assuming the truth of the bill, that theory is well founded. The facts alleged in the bill and not denied in the answer show the Louisville & Nashville Railroad Company was a common carrier with respect to the use it made of the track in question. As a common carrier it was under obligation to treat the public Avithout unfair discrimination. In the answer it is averred, in substance, that before and when the car Service was refused, complainants owed, and had refused payment of, a debt, to the Louisville & Nashville Company accruing for detention of cars and that by reason of this fact, together with a rule of a car service association whereunder that, and other railroad companies were operating, the discontinuance of car service to complainants was authorized. This is neAV matter within the meaning of the rule which on the hearing of a motion to dissolve an injunction on answer made confines the court’s consideration to matters which are in denial of the bill’s averments. To now determine Avhetlier this new matter can be availed of to prevent relief on final hearing Avould be inappropriate. The bill has equity and apart from neAV matter set np in the answer, no defense is shown. We are of the opinion that the injunction should be retained until the further hearing of the cause and will order that this be done, and that the decree of dissolution be reversed, and the cause remanded. Reversed and remanded.