Cook & Wheeler v. Chicago, Rock Island & Pacific Railway Co.

Rotiirock, C. J.

*• Ser»:freight Sates.63: re" I. The action is not founded upon any statute, state or federal. The right to recover is based entirely upon the common law pertaining to the duties and obligations of common carriers. By an amended and substituted petition the plaintiffs claimed unlawful and unjust overcharges upon the shipment of three hundred and sixteen carloads. Each shipment was pleaded in a separate count as a separate cause of action. All of the accounts were alike except in dates of shipment, cars and kind of stock shipped, and stations from which the shipments were made. It is averred, in substance, in the amended petition, that the public tariff rates for shipment of live stock, from any point in Jasper county during the time the plaintiffs made such shipments, was sixty dollars for one carload; that the plaintiffs paid the full amount of said rates, and that certain other shippers (who are named in the petition) also paid the full tariff rates; but that said other shippers were allowed, and defendant paid to them, a rebate or drawback upon each carload shipped by them, which rebate or drawback was paid by defendant to said shippers, under a private and secret arrangement between the defendant company and said shippers ; and that the knowledge of the payment of such rebates was wrongfully and fraudulently concealed from the plaintiffs by the defendant, and said other favored shippers ; that the agents of the defendant openly announced and declared to the plaintiffs that the public and announced tariff paid by the plaintiffs was correct, and that no cut, rebate or concession from the same was allowed to any shipper, and that the plaintiffs, by reason of said wrongful and fraudulent agreement, did not and could not have discovered it, and they shipped their stock in the belief that no unjust discrimination was made against them. It is charged that the shipments made by the plaintiffs, and those made by the said favored shippers, were for precisely the same service, from the same places, upon like conditions, and under precisely the same circumstances, and that the rate charged by the defendant and paid by the plaintiffs was unreasonable, extortionate, and unjust, and that it was an unjust discrimination between shippers for the same service under like circumstances.

Before proceeding to a determination of what we regard as the material question in the case, we will first dispose of a question pertaining to the power of the referee. The petition in the case was twice amended after the cause was referred. The reference was made by agreement of the parties before any issue was made or tendered in the case. The order of submission was as follows: “By agreement of parties this cause is referred to D. Ryan, with power to settle issues, and try and hear the cause, and report the facts and conclusions of law.” After the reference was made, the parties appeared before the referee, and the issues were made up. The amendments to the petition were very voluminous, and there were certain interrogatories attached to the petition, which interrogatories the plaintiffs demanded should be answered by certain persons claimed to be general officers of the defendant, and a rule was asked that the defendant be required to produce certain books and papers. In other words, the plaintiffs sought, by about all the means known to the law, to compel the defendant to disclose the facts as to the alleged discrimination between shippers. All these movements were resisted by the filing of motions and demurrers, attacking the pleadings, and by refusing to produce its books and papers, and by failing to make full answers to the special interrogatories, and for such failure the referee ordered that the petition be taken as true, except so far as its averments were modified by the evidence introduced on the trial. It is claimed in behalf of the defendant that, under our practice, a referee has no power to make the orders which the referee made with reference to the failure to produce books and papers, and the failure to answer the special interrogatories. We do not think it is proper to determine what power a referee may have in these respects, for the reason that there is really not a disputed question of, fact in the case. The evidence of the witnesses introduced by the plaintiffs establishes the facts pleaded in the petition without conflict. The defendant did not introduce any evidence; and, if the facts pleaded entitle the plaintiffs to recover, it would have been clearly against the undisputed evidence to have made a finding for the defendant. We will now state, as briefly as may be, the substance of the evidence.

It appears that one E. R. Clapp was an employe of the defendant. He was located at Des Moines, and was known among shippers of live stock as the Iowa stock-agent of the defendant. Clapp was frequently along the railroad in conference with shippers of live stock. He held this position during the time that the plaintiff made the shipments set forth in their petition. There were a number of shippers of live stock in and about Newton, the principal station on the defendant’s road in Jasper county. During nearly the whole time covered by this action, the tariff rate for shipment of live stock from Newton to Chicago was sixty dollars per carload. It was practically the same from the stations next east and west of Newton. There was at times a slight difference, but not enough to be a material fact in the case. The freight charges, as given by the defendant to its station agents, were for the most of the time sixty dollars per carload, and this rate was given out by station agents to shippers as the charge made by the defendant. All of the carloads sent forward by all the shippers were billed by the agents at the full rate given out by the company. The stock was shipped in the usual manner. No part of the freight charges were in any case paid at the place of shipment. The cars were billed to commission houses at the Union stockyards. The stock was sold by the commission men, and, after taking out their commissions and paying the freight, the balance of the proceeds of the sales was remitted to the shipper. This was the uniform manner of transacting the business. All of the shippers were dealt with in exactly the same manner until the stock was sold, and the regular freight charges paid. There was no difference in the manner of the service. All of the shippers were given the same kind of cars, and the stock shipped by the plaintiffs was conveyed in the same kind of trains, and on the same time, and with the same privileges as to the free transportation of ©ne or more men to take care of the stock while in transit. In short, the plaintiffs had no preference over other shippers in any respect. It appears without conflict that at least three other firms or individuals engaged in the same business at the same place, and in competition with the plaintiffs, had private and secret agreements with Clapp, the said stock agent, by which they were paid a rebate of from three to twenty dollars on each carload shipped. These agreements were not uniform at all times. The amount to be paid varied just as the parties were able to agree upon the terms. So far as appears, Clapp always performed the contracts. He paid the rebates sometimes in currency, at other times by sending the money to the shippers by express. There were short intervals during the.time that no rebates were paid. But these intervals were the exception and not the rule. And Clapp always exacted a promise from the favored shippers that the fact of the payment of rebates must be kept secret. We have not made a careful estimate of the number of carloads shipped by the favored shippers. Indeed, no exact estimate could be made from the evidence. It is shown, however, beyond all question that not less than eighteen hundred carloads, in the aggregate, were shipped by the favored shippers. The plaintiffs made application to Clapp for better terms, and were refused. He invariably stated in most positive terms that no rebates nor concessions were allowed to any of the plaintiffs’ competitors. The referee found that the plaintiffs were entitled to recover on part of the shipments at the rate of three dollars per car, and on others at five dollars, and on the remainder at the rate of ten dollars per car. The aggregate amount found to be due, including interest, was twenty-seven hundred and thirty-three dollars and ninety-eight cents. If the plaintiffs are entitled to recover on the ground of unjust discrimination, the evidence shows beyond all controversy that the judgment is not excessive. Indeed, we do not understand appellant’s counsel to claim that the judgment is excessive.

The real question in the case is, do the facts above recited authorize a recovery on the part of the plaintiffs'? It is well to keep in mind the fact that the defendant is a public common carrier. At common law a public or common carrier is bound to accept and carry for all upon being paid a reasonable compensation. The fact that the charge is less for one than another is only evidence to show that a particular charge is unreasonable. In Story on Bailments, section 508, note 3, it is said: “There is nothing in the common law to hinder a carrier from carrying for favored individuals at an unreasonably low rate, or even gratis.” And in 1 Wood, Railway Law, 566, it is said: “A mere discrimination in favor of a customer is not unlawful, unless it is an unjust discrimination.” In volume 2, page 95, Redfield on Law of Railroads, the following language is used: “It has been held in this country, where there is no statutory regulation affecting the question, that common carriers are not absolutely bound to charge all customers the same price for the same service. But as the rule is clearly established at common law that a carrier is bound bylaw to carry everything which is brought to him, for a reasonable sum to be paid to him for the same carriage, and not to extort what he will, it would seem to follow that he is bound to carry for all at the same price, unless there is some special reason for the distinction. For, unless this were so, the duty to carry for all would not be of much value to the public, since it would be easy for the carrier to select his own customers at will by the arbitrary discrimination in his prices. Hence, it was held at an early day that all that could be required on the part of the owner of the goods by way of compensation, was that.he should be ready and willing to pay a reasonable compensation, and to deposit the money in advance, if required. Carrying for reasonable compensation must imply that the same compensation is accepted always for the same service, else it could not be reasonable, either absolutely or relatively.” ■In Hutchinson on Carriers, 243, after a review of the cases, it is said: “Hence we may conclude that in this country, independently of statutory provisions, all common carriers will be held to the strictest impartiality in the conduct of their business, and that all privileges or preferences given to one customer, which are not extended to all, are in violation of public duty.” An examination of the authorities cited by these learned authors leaves no doubt that a common carrier has no right to make unreasonable charges for his services, and that he cannot lawfully make unjust discrimination between his customers. It is strenuously contended by counsel for appellant that it is not charged in the petition as a substantial fact that the rate charged the plaintiffs was unreasonable. It is distinctly averred that the rate charged the plaintiffs ‘ ‘ was unreasonable, and is and was an unjust discrimination.” This appears to us to be a sufficient answer to the argument of counsel to the effect that the action is founded solely upon the fact of mere difference in rates. It appears to be conceded that the defendant had no right to exact unreasonable rates or to make unjust discriminations between skippers wliick in effect compels one skipper to pay an unreasonable rate.

/Tke above principles of law may be said to be fundamental, and it is only necessary to apply tke facts to reack tke conclusion tkat tke rates paid by tke plaintiffs were unreasonable and unjust discrimination. It is not claimed that tke favored skippers were objects of tke charity of the defendant. Tke payment of tke rebates cannot be designated as “alms-giving.” It does not appear tkat tke concessions were made because tke favored skippers furnished more shipments than tke plaintiffs. Tke fact is tkat some of tke others shipped less than tke plaintiffs. In short, there is no reason for tke discrimination. It is true tkat it is claimed tkat tke rebate skippers bought cattle and hogs from territory in which shipments would ordinarily be made upon other railroads, but tke evidence shows tkat tke plaintiffs’ field of operation was about the same as tke other skippers. It does not appear that the rebates were allowed merely at times when there were cut rates or a war of rates between tke defendant and rival railroad lines. The rebates were paid regularly for years, with but short intervals. Is it to be supposed that any court or jury under this state of facts would solemnly find, declare and adjudge that, after paying the rebate, tke defendant did not have a reasonable compensation for tke service ? The- only finding that can in any fairness be made is tkat, after deducting the rebate, the rate was reasonable; and tkat the exaction from tke plaintiffs was unreasonable, and tke discrimination against them unjust. And tke fact tkat it was secretly done, and tkat it appeared to be necessary to carry it on by lying and deceit, surely does not tend to commend suck a course of dealing to fair-minded men./: We have been cited to a number of adjudged cases, bji counsel for tke respective parties, and we think we may safely say tkat not one of them is in conflict with the views we have herein expressed upon this question. On the contrary, and in support of our conclusion, see Sharpless v. Mayor, 21 Pa. St. 147; New England Exp. Co. v. Maine Cent. Ry. Co., 57 Me. 188; McDuffee v. Portland & Rochester Ry. Co., 52 N. H. 430; Messenger v. Penn. Ry. Co., 36 N. J. Law, 407.

_.__ - — Noiuii-tary payment II. It is claimed in behalf of appellant that the payments by the plaintiffs were voluntarily made, and cannot be recovered back. It is true, the money was paid without duress of person or j. or goods, but it was paid, not only without knowledge that it was a wrongful exaction, but in the belief of the truth of the positive assertions of Clapp that no shipper was allowed any rebate. That such a payment is not voluntary, see 1 Pars. Cont. 466, and Heiserman v. Burlington, C. R. & N. Ry. Co., 63 Iowa, 732.

limitation of actions. III. The defendant pleaded the statute of limitations, as to part of the claim. The same question was considered in the case of Carrier v. Chicago, R. I. & P. Ry. Co., 79 Iowa, 80, where it was held that the statute of limitations was no bar to the action. Following that case we hold that the statute did not commence to run while the plaintiffs had no knowledge of their rights in the premises, owing to the fraudulent concealment of the cause of action by the defendant.

4• District court rules: copies of pleadings: excessive fees. IY. The defendant also appeals from an order overruling a motion to retax costs in the case. It appears that the sum of five hundred and eighty-two dollars was taxed as costs for copies of the petition and the several amendments thereto. It is shown by evidence taken on the hearing of the motion that the petitions and copies thereof were printed at an expense of not to exceed thirty dollars. The action of the court in taxing this erroneous item of costs was founded upon rule 1 of the rules of practice adopted by the convention of district judges, which went into effect July 4, 1887. The following is a copy of the rule : “Every party at the time of filing any petition, answer, reply, demurrer or motion * * * shall file with, the same one plain copy thereof for the use of the adverse party ; and, on failure to do so, the same may be continued at the option of the adverse party, or the paper so filed stricken from the files. A fee of ten cents per hundred words shall be allowed for all copies, and taxed with the costs.” Substantially the same rule was in force in some of the districts of this state for many years before it was adopted by the convention of judges. We are of opinion that such a rule of practice is valid, and that it was within the power of the judges to authorize costs to be taxed therefor, but it surely was not intended that the rule should be made an instrument of oppression. There is no requirement that a literal copy of all the pleadings should be made, when such pleadings are precisely alike, excepting, possibly, a date, an amount or the like. The purposes of the rule would have been fully subserved by a copy of one count, with a mere reference to the others. The court ought to have the discretion to prevent speculative and unnecessary costs. This item of costs will be reduced to fifteen dollars. The rule surely ought not to apply literally to petitions like this.

V. The plaintiffs also appealed from the judgment; but, if the judgment be affirmed on the defendant’s appeal, they consent that it may be affirmed on their appeal. The judgment will, therefore, be affirmed throughout, with the exception as to the item of costs, as above mentioned. And as the defendant was successful on that branch of the appeal, twenty-five dollars of the costs in this court will be taxed to the plaintiffs; and the plaintiffs will also be taxed twenty-five dollars by reason of the affirmance of their appeal. These assessments appear to us, from an examination of the abstracts and arguments, to be about correct. Modified and affirmed.