Atchison, Topeka & Santa Fe Railway Co. v. Bourdett ( 1906 )

The opinion of the court was delivered by

Porter, J.:

The defendant demurred to the evidence and the demurrer was overruled. It also asked for a peremptory instruction, which was denied. Error is assigned upon these rulings of the court, and it is con- . tended that the plaintiff failed to make a prima facie case because there was a failure of proof of the allegation in the petition that the company' wilfully and without any legal reason or excuse withheld the shipment from the consignee at Independence. It is urged that plaintiff’s evidence shows that the shipment was not delivered because of refusal to pay the additional freight charges demanded; that as a matter of law it devolved upon plaintiff to prove that the charges were extortionate, illegal, unreasonable or in excess of the regular tariff rate charged other persons for like shipments. ■

The railway company sought at the trial to excuse its demand for the additional freight charges on the ground that, as the stem of the drill was too long to go in a box car with side doors, it was shipped on a flat car, and thereby became subject to a minimum charge equal to the charge for 5000 pounds at first-class rate under the Western classification, which made the charges amount to $23, and that the difference between this and the $4.20 prepaid was the $18.80 demanded by the agent at Independence. The defendant insists that it is the law that the shipper must tender the freight charges before he is entitled to possession; that if he believes the charges extortionate or unreasonable he may pay under protest and sue to recover the excess, or, it is said, he may bring his action in replevin to recover the possession. And because the plaintiff pursued neither of these remedies it is argued that he cannot maintain an action for damages for withholding the possession. ■ If, before he is entitled to possession, he must tender the freight charges, his action in replevin would fail because tender had not been made. Again, if it be true that he can maintain an action in replevin, he could in the same action recover damages for the unlawful withholding; and it is argued by plaintiff that, having obtained possession without replevin, he should be allowed to maintain an action for damages alone.

It is assumed in the argument of the plaintiff in error as well as in its entire brief that, as a matter of fact, the drill was withheld by the agent at Independence for refusal to pay $18.80 freight charges. The evidence of the defendant in error was that the agent’s clerk notified Bovaird & Co. that the drill would not be delivered until $88.20 was paid, including not only the extra freight which the company claimed as due under the Western classification but an old account of $19.40 which the agent said was due from the consignor for shipping the same drill several months previously.

The jury in their answers to special questions found this to be the fact. It will not be necessary in our view of the case to consider the questions suggested by the plaintiff in error as to the relative rights of the parties, and the remedies of a consignor of freight in a case ' where the refusal to deliver was for the failure to pay freight charges, nor to inquire what effect the prepayment of the freight charges demanded at the point of shipment had upon the rights of the consignor to immediate delivery. Under any theory which might be takep of those questions the fact remains that the agent of the railway company at Independence included in his demand, and insisted upon payment of, a claim which did not arise out of the contract for shipment and which had no possible connection with it. With as much propriety he might have withheld delivery until a claim of the passenger department which he conceived to be due the company, or a board bill of his own against the consignor, was paid.

In view of the arbitrary conduct and unreasonable delay of the railway company every presumption should be indulged in favor of the judgment in this case. It is attacked as an allowance of speculative damages, as not supported by any evidence showing actual loss of the use of the drill for seven days, and because it is said the wages of the men employed by the plaintiff were considered by the jury in determining the value of the use. There was some evidence that the use of the drill to plaintiff was worth $20 per day, and that the delay in the delivery of it occasioned the loss of at least seven days’ use — under the circumstances, sufficient, we think, to support the verdict.

It is immaterial, therefore, that the jury disregarded the evidence in their special finding in reference to the usual and ordinary freight charges for similar shipments and in answer to the question whether the railway company used in its business a book known as the Western classification. The action of the company in withholding delivery for refusal to pay a claim wholly disconnected with the contract of carriage precludes an inquiry into the merits of its other demand.

We have examined the other errors suggested but find nothing requiring a reversal. The judgment therefore is affirmed.

All the Justices concurring.