Thompson v. Richards

The opinion of the court was delivered by Hoch, J.: 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, Colo., freight prepaid to Tennessee Pass, Colo., 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, Kan. Under a [179] provision of the tariff rules which permits sale in transit they were moved to Scottsvillé 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: “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. “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. 480. “3. What was the weight of the sheep shipped? A. 75,063 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. [180] 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. (G. S. 1935, 60-3303, Thomas v. Chicago, B. & Q. Rld. Co., 127 Kan. 326, 329 and cases there cited, 273 Pac. 451; 2 Am. Jur., §§ 38-40; 4 C. J. S., 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 earner, 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 penalities. 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. (Pittsburg, C. C. & St. L. R. Co. v. Fink, 250 U. S. 577, 63 L. Ed. 1151; N. Y. Central v. York & Whitney Co., 256 U. S. 406, 65 L. Ed. 1016; 83 A. L. R. 245, 268; Railway Co. v. Wagner, 102 Kan. 817, 172 Pac. 519; Farrar v. Perkins, 122 Kan. 141, 251 Pac. 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 [181] country. To put an end to that sort of thing was the primary purpose behind the enactment of the Interstate Commerce Act. 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? That fact being determined, the amount to be collected would follow as a mere mathematical computation. The plaintiff put on the stand as an expert witness a man who had been 'an employee of the company for forty-two years, an employee in the rate department since 1905 and an assistant general freight agent for fourteen years. He introduced various exhibits relating to rates and charges and testified, repeatedly and unequivocally, that the correct and lawful rate on the shipment was 60 cents .a hundred. The defendant was permitted, over the objection of plaintiff, to introduce evidence as to the rate between Denver and Scottsville, as to rates applicable on different routings and as to charges collected on other shipments. None of this was competent and should have been excluded. The only issue was as to the correct and lawful rate on the shipment involved, between Tennessee Pass and Scottsville. The defendant offered no testimony on that issue and plaintiff’s evidence that the correct rate was 60 cents a hundred stood unchallenged. Defendant’s evidence consisted of a recital of facts and circumstances incident to the shipment and the submission of copies of correspondence with the plaintiff subsequent to the shipment, and of the freight bills covering the shipment showing a notation by the local agent that the charges had been paid in full. There was nothing in this evidence which constituted any defense to the cause of action established prima facie, by the plaintiff. Plaintiff’s demurrer to defendant’s evidence should have been sustained. If the demurrer to defendant’s evidence had been sustained was the plaintiff then entitled to a directed verdict? The plaintiff’s witness had testified that the correct rate was 60 cents. That testimony stood uncontradicted. The rate determined the amount due. We are well aware of the rule that a verdict should not be directed where there is any conflict of evidence on a material question of fact. But we think the situation here presented brings it within the other rule that where the evidence reasonably admits of only one conclusion and clearly shows the right of the plaintiff to a verdict, a motion for a directed verdict should be sustained. (26 R. C. L. [182] 1073; 64 C. J. 459, 469; Ryan v. Harwood, 145 Kan. 267, 65 P. 2d 277; Furst v. De Witt, 145 Kan. 300, 305, 65 P. 2d 567. In White v. Village of Soda Springs, 46 Idaho 153, 266 Pac. 795, syllabus 4 reads: “Failure of defendant to offer any evidence partakes of the nature of demurrer to plaintiff’s evidence.” That may be, however, a somewhat extreme statement of the rule.) We conclude that there remained no issue of fact which would justify submitting the case-to the jury and that plaintiff was entitled to judgment. The judgment is reversed with directions to sustain plaintiff’s motion for a directed verdict for the amount prayed for.