Baldwin Land Co. v. Columbia Ry. Co.

Mr. Justice McBride delivered the opinion of the court. 1. The shipment from Shaniko via Biggs to Rawlins was clearly an interstate shipment. There was no change of cars or interruption in the regular course of transportation when the stock reached Biggs, nor was any such change or interruption contemplated by the shipper. It was one continuous shipment from one state to another. Hanley v. Kansas City Southern Ry. Co., 187 U. S. 617 (23 Sup. Ct. 214: 47 L. Ed. 333); Davis v. Southern Ry. Co., 147 N. C. 68 (60 S. E. 722); Shelby Ice & Fuel Co. v. Southern Ry. Co., 147 N. C. 66 (60 S. E. 721); Louisville R. Co. v. Behlmer, 175 U. S. 648 (20 Sup. Ct. 209: 44 L. Ed. 309). 2. The authorities cited by appellant are not in point in this case: Gulf, C. & S. F. R. Co. v. Texas, 204 U. S. 403 (27 Sup. Ct. 360: 51 L. Ed. 540), is a fair illustration. In that case gram was shipped from Hudson, South Dakota, to Texarkana, Texas. While in course of shipment it was sold to a party in Goldthwaite, Texas, and the shippers notified their agent at Texarkana to reship the grain from there to their purchaser at Goldthwaite, which was done without breaking bulk or unsealing the cars. The agent of the shipper, however, surrendered the original bill of lading and took a new bill of lading from Texarkana to Goldthwaite. It was held that the shipment from Texarkana to Goldthwaite was no part of an interstate shipment. But there the original destination of the freight had been reached. There had been no intent on the part of the shipper or of the railroad company, when the freight started on its journey, that [289] it should be carried beyond Texarkana, while in the case at bar the intent- of both shipper and freighter in the first instance was that the freight should be carried by one continuous shipment from one state to another. As was said in the case last cited, the case of a freight contract is not essentially different from the purchase of a railroad ticket. Suppose the local rate for a ticket from Portland to San Francisco were two cents per mile and the local rate from Portland to Ashland were three cents per mile. Could one who purchased a ticket to San Francisco claim that he should have the charges so equalized that he could have the benefit of the lesser or interstate rate for the whole distance. The distinction is obvious. It would encourage the grossest form of rebating if an interstate shipment could be cut into local subdivisions in the same state, thus avoiding the regulations of the Interstate Commerce Commission. If the rate quoted is less than the schedule rate approved by the Interstate Commerce Commission and published, the shipper is liable for the full rate, whether he actually knows that the rate quoted is less than the schedule rate or not. We quote from Texas & Pacific Ry. Co. v. Mugg, 202 U. S. 242 (26 Sup. Ct. 628: 50 L. Ed. 1011): “One who has obtained from a common carrier transportation of goods from one state to another at a rate specified in the bill of lading less than the published schedule rates filed with and approved by the Interstate Commerce Commission, and in force at the time, whether or not he knew that the rate obtained was less than the schedule rate, is not entitled to recover the goods, or damages for their detention, upon the tender of payment of the amount of charges named in the bill of lading, or of any sum less than the schedule charges.” In view of this decision it is needless to consider the decisions of the various state courts or the inferior courts upon the same subject. [290] 3. The most serious question that presents itself is whether the question last adverted to is raised in this cáse. The defendants by further and separate answers set up that at the date of the shipment there was in existence a joint tariff, which had been theretofore promulgated by the defendant companies, prescribing and fixing the minimum rates on cars loaded with sheep from all stations of the Columbia Southern Railway to the Missouri River common points, which rate was $181 per car, and that this rate applied to the shipment described in plaintiff’s complaint; that at the time the shipment was made the same had been published and filed with the Interstate Commerce Commission, as required by law, and was also published and on file at defendant’s station at Biggs, and Huntington, and at all intermediate stations; that at the same time there was a joint tariff in force and effect which was promulgated and entered into in connection with the Oregon Short Line Railroad Company and the Union Pacific Railroad Company, making a rate of $116 per car from Biggs, Oregon, to Rawlins, Wyoming, and that such tariff at the time of the transaction was set forth in the complaint published and on file with the Interstate Commerce Commission, as required by law, and published and on file with the different stations of the Oregon Railroad & Navigation Company, including the station at Biggs. Defendants alleged that they had in good faith quoted the lower rate claimed by plaintiff, and that, when the shipment was made, they demanded the tariff rate. A demurrer was sustained by the court to this answer of which but the mere skeleton is here given, and defendants, without filing any further or amended answer, went to trial upon issues framed by their denials. In our view the answers filed stated a complete defense, and the court erred in sustaining the demurrer. But this error cannot be corrected here, and the question before us is whether in the muti [291] lated state of the pleadings defendants could show, under the general issue, that the rate first quoted was less than the established rate, and therefore illegal, and that the rate charged was the regular tariff rate. The general rule is that the illegality of a contract cannot be proved unless it is pleaded, and, the pleadings in this case having been pruned of this defense, defendants had no right to offer testimony in regard to it and such as was offered was excluded by the court. 4. One of the exceptions to the above rule is that, where it affirmatively appears from competent testimony that the contract sued upon is illegal, the court will refuse the plaintiff relief, irrespective of the pleadings, as, for instance, if plaintiff should sue in assumpsit, and it should appear from his testimony that the contract was based upon a promise to pay money won at gaming. The rule in this State is that if the complaint shows a contract valid on its face, and the defendant, in his answer, fails to point out the transaction or vice which renders it illegal, he will not be allowed to introduce testimony to show such illegality. This is so well established in Buchtel v. Evans, 21 Or. 309 (28 Pac. 67), that it is unnecessary to cite further authorities. 5. It is true that, if plaintiff had prevailed in this case, this court would have been obliged to reverse the judgment on account of the error of the court in striking out defendants’ answer, which error they did not waive by going to trial upon their denials, and it may be true that the court may be compelled to reverse any future judgment that plaintiff may recover until this error is corrected by the lower court and defendants are permitted to offer proof, if they have any, of the matters pleaded in their second defense. But in the present state of the pleadings and proof the findings of the circuit court cannot be sustained. Judgment reversed and new trial ordered. Reversed.