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Show COURT SUSTAINS S58.8G2 VERDICT! Oil GOAL RATES Dearer & Rio Grande Railroad Rail-road Lose Appeal in Ac , tion Brought by Jeremy Fuel & Grain Company. RULING ENDS THREE ':: YEARS' LITIGATION . Original Judgment ' Wa Baaed on Alleged Orer charge of $1.60 Per Ton; Rail Tariff. Naming $1.25 , Judgment of the Third district eonrt In tha caee of the Jeremy Fuel and Drain company against tha Denver A Rio Grande railroad, In which tha fuel company brought autt to recover what waa alleged aa axcaaalva charges which, had bean collected by tha railroad oeexv pany on cool shipped lo tha fuel com pany, waa affirmed by tha aupremo oourt today, Tho trial oourt awarded a judgment In favor of tho fuel and grain company for f6l.Mll. Tha raUe roaa company appeal ea. 1 ms awara es sustained by the supreme oourt In an opinion written by Justloo A. J. Weber, which. In part, follows! The complaint In subetanoa charge that between November I, 114, and March T, 117, the defendant collected freight on coal shipped In carload lore by plaintiff and Ita assignors at the ralO of 11.40 par ton, and that between those detee, aa contained In Its printed taiirf schedule for the transportation of coat, the legal rate waa $1.1 per ton; that the charges of $1.0 per ton waa oar mandsd and collected by appellant of respondent and Its aaalgnore were urr juet, unreasonable, discriminatory and unlawful to the extent that aald charges exceeded the ratea and charge aa published In tho tariff schedule, and the charge demanded and collected from respondent and It assignors were unjust, unreasonable, dlecrlmlnatoef and unlawful la the extent that they exceeded $1.1 per ton. , . PARTICULARS OMITTED. - "The complaint wa demurred to he appellant on the ground of uncertainty In that from tho averments that tha ratea exacted of tho consignee ""sis unjust, unreasonable, discriminatory and unlawful to the extent that aald charge exceeded tho sum of $1.1 per ton. It I Impossible to determine! la what respect said rate are unjuet, B-reaaonable, B-reaaonable, discriminatory or unlawful.' A motion waa ale made to strike the parte of - the complaint 'demurred to. It I argued that to aay a rata la unreasonable un-reasonable la merely a conclusion and' sot a statement of fact, and that appellant ap-pellant waa entitled to be apprised In ' what reaped he rate were claimed to be unreasonable. Attached thereto and made a part of the com p la tat are exhibit ex-hibit showing, among other things, the raise of freight charged, what tho rat ehould have been, and tha overt charge on each shipment "To say that an overcharge has been collect ed la atatlnc an ultimate fact- not simply a legal ooneluelon,1 say tha court. "Certainly the appellant wa given all tho Information that waa necessary to fully apprise H of whst respondent claimed. It hae frequently been held that It I sufficient to alle- In the complaint that plaintiff waa charged a sum In oxoesa of a reasonable reason-able rata Thus It 1 aald In Goodrich vs. U. P. R. R, 1 fed. St. that 'A elm-pie elm-pie allegation that the plaintiffs were charged $1 a ton and that they had paid that amount, and that thosa charges were unreasonable and extortionate, extor-tionate, statee a good cauae of action.' In 1 C. J. p. 444. se. 717. tho author says: 'At common law. where a carrier car-rier makes Illegal charges to carry tho goods, the consignee's expenses may be recovered back In an action for money had and received.' As stated la Cullen vs. Seaboard Airline R. R. company. com-pany. FIs. Be. 111. the gist of tho sctlon Is that the defendant, upon the circumstances of the case, la obligated hy the ties of natural justice to refund the money.' "Another attack made by demurrer upon the complaint la that each cause of action. In so far aa It Is predicated upon ths exaction of higher , freight rates from ths parties than from other ahlppera, I barred by aubdv. 1, of sec. 441. com p. laws Utah. 117, or. If not barred by that section. Is barred hy eubdv. 1, of see. $470 of the eame.com-pllatlon. eame.com-pllatlon. Bubdv. 1 of see. 4441 provide that an action for liability created by statuts other than penalty or forfeiture under tho laws of this state shall be (Continued on Psge $ ) COURT SUSTAINS (Continued from page I ) begun within one year. 8ubdv. 1, sen. 470, provldea that an action upon the atatuta for a penalty or forfeiture, where tha action la given to an Individual, Indi-vidual, eicept when the atatuta Imposing Im-posing It prescrlhee a different limitation, limita-tion, ahall he begun wfTTiln one year. Thla ault waa Inallluled March 21. On December II, 117, the government took control of and operated the U. A. H. (1. Hallroad company. By the transportation trans-portation art, providing for government govern-ment control and operation of railroads. It la provided that the period of federal fed-eral control shall not be computed as a part of the period of limitation In actlona against carrlera for raueea of action arialng prior to federal control. Therefore, the period from December II. 1(17, muat be excluded from the compulation of the period of limitation of the atate atatute. (Htanley vs. IT. 8. railroad administration. 271 fed. 7(4 1 Kxcludlng the period of federal control, none of the clalma for overcharge were barred by the fnur-vear limitation. Tha trial court, however, permitted no proof of ahlpmenta prior to March 11, 11S. LOWER COURT SUSTAINED. "The atatuta of this atate which waa In force when plainliff'e cauaa of action ac-tion accrued did not ausoend other remedies and did not abrogate the common law remedy. Aa plaintiffs cauaa of a.'tlon waa not baaed upon the atatuta. the court committed no error In overruling appellant'a demurrer which raised tha question of the statute stat-ute of llm'tallons. "Among appellant'a assignments of error are many regarding the admission admis-sion and exclusion of evidence. The trial wns prolonged. Every possible technicality waa Invoked by appellant's, counael. Over objectlona, aome Incom-' petent and aome Immaterial evidence waa admitted. Home of the court's In-atructlona In-atructlona are doublleaa ubjeot Co criticism. "Mubatantlal competent evidence supporting tha complaint waa adduced by plaintiff. An examination .of the record convlncea ua that tha Jury's verdict ver-dict waa right. In such a case It la our duty to be governed by the lettei and aplrlt of the atatute which provides pro-vides that the court muat In every atage nf an action dlaregard any error or defect In tha pleadings or proceedings proceed-ings which does nut effect tha aub-atantlal aub-atantlal rlghta of the partlea, and that no Judgment shall be reversed or effected ef-fected by reason of aui-h error or defect, de-fect, (romp. Laws Utah. 117, Heo. 2J The Judgment Is affirmed with costs." OTHER CONCERNS INTERESTED. Thla ends hard-fought litigation which haa extended over a period of approximately three years. The ault waa first filed In the Halt take district dis-trict court In March. Kit. The partlea named In the complaint In addition to plaintiff, Jeremy Fuel and drain company, com-pany, as having an interest In the subject sub-ject matter are t'tah ties and Coke rompuny, Utah Klre Clay company, Alliance Al-liance Coal company, l'arrott Coal company, Federal Coal ' company, Fischer-Kittle Coal company, Htandard' Fuel company. Marsh Coat company. Woodruff - Hheeta - Morris company, Waaatch Coal company, Vtah Concrete Pipe company and Utah Iron and 8teel company. The ault la the culmination of the effort of Halt Lake City consumers of coal to obtain from the rallroada what they consider a fair rate of transportation, transpor-tation, and It Is the first time that any reparation haa ever been obtained on coal ahlpmenta from Utah fielda to Halt Ike City In the local courts. It la said. The case la an unusual one, no other procedure similar to It having been brought In the Utah courts, and It la stated thnf similar actlona. In the courts of other statea are not numer-oua. numer-oua. Tha attorneys for the railroad com. pany were the local firm of Van Cott, Klter Farnsworth and Henry McAl-1 McAl-1 ester. Jr., chief counsel for the Denver Den-ver A Rio (Irande Railroad company, and J. O. McMurry, commerce counsel, coun-sel, of Ienver. Tha coal dealers were represented by Baldwin Robertson of the firm of Ball, Muaser A Robertson, of thla city. |