
    Anniston Mfg. Co. v. So. R’y Co.
    
      Action to Recover Freight Overcharges.
    
    (Decided Dec. 21, 1906,
    40 So. Rep. 965.)
    1. Appeal; Exceptions, Bill of; Certiorari; Return; Conclusiveness. —Where the bill of exceptions sent up in response to a certiorari for corrected bill, differs from that in the original transcript, the bill sent under certicrari will be regarded as the correct bill.
    2. Same; Certiorari to Bring up Record. — This court will not award certiorari to bring up bill of exceptions although signed, if there are blanks in material parts of the instrument, and papers intended to be inserted therein are not properly identified.
    3. Exemptions, Bills of; Setting out Documents. — The bill of exceptions recited that two certain opinions of the Railroad Commission of certain dates were introduced in evidence, and directed- the clerk to set out ones of different dates. The clerk set out certain opinions and certified that the opinions set out were -the only ones on file in his office. Held, not sufficient to show that the opinions set out were the ones introduced in evidence.
    4. Carriers; Overcharges; Evidence; Rates of other Carriers. — It is incompetent, in an action for overcharges of freight between two points, to show what rates were charged by another carrier between other and different points, unless the conditions are shown to be the same.
    5. Witnesses; Leading Questions. — Objection to a question which is leading and suggestive is properly sustained, such as whether the traffic has increased since a certain time, and if it is not greater than for two years previous thereto.
    6. Carriers; Overcharges; Evidence. — Evidence as to what was regarded as a reasonable rate by railroad men for certain classes of freight is incompetent, unless limited to the rate between the points in issue, or similar points.
    7. Same; Rates in Other States.- — It is incompetent to show what rates the defendant charged for the same class of freight between points in another state, unless conditions are shown to be similar.
    8. Same; Railroad Commission; Opinions. — Where two counts in the complaint claimed for overcharges since the rendition of opinions by the railroad commission, it was not error to admit such opinions in evidence, although other counts in the complaint claimed for overcharges prior to such rendition, and § 3496, code 1896, makes such opinions prima facie evidence only of charges subsequent to their rendition.
    9. Trial; Instructions; Burden of Proof. — A charge requiring plaintiff to prove his case to the “reasonable certainty” of the jury-required too high a degree of proof and it was error to give it.
    10. Appeal; Presumptions. — Presumptions indulged as to the cor- . rectness of the action of the trial court where the bill of exceptions does not contain all of the evidence do not apply to the oral charge of the court which erroneously states the law.
    Appeal from Anniston City Court.
    Heard before Hon. Thomas W. Coleman.
    Tbis was an action by appellant against appellee to recover certain alleged overcharges in freight for. hauling coal to appellant at Anniston from the Birmingham district. The complaint contained four counts for money bad and received by defendant to use of the plaintiff between March, 1899, and January, 1900, and between January 1, 1900, and January 1, 1901, and during the year 1900, and from the 1st day of January, 1902, to the 1st day of February, 1903. Demurrers were overruled to these counts, and defendant filed the general issue; plea of the statute of limitation of three years to certain items and the statute of limitation of one year to certain items; that the amount claimed in each count is for money paid by plaintiff to the defendant on account of freight charges, and the defendant says that said payments were made without compulsion or duress had or exercised by the defendant over the plaintiff, and were made with the full knowledge of the fact in relation thereto; that each count claims money paid for alleged overcharges of freight on coal from points on defendant’s line of railroad in what is known as the “Birmingham District” to the city of Anniston, Ala.; that heretofore, and prior to the accrual of said cause of action alleged in said count, the plaintff made complaint to the Bailroad Commission of Alabama against the defendant charges, and alleging that the rate of freight charged by the defendant on such coal shipments was exhorbitant and constituted an unjust discrimination against the plaintiff; that upon a trial and hearing before said Bailroad Commission it was held and decreed that the said rate of freight was not exorbitant, and was not an unjust discrimination against the plaintiff, and defendant avers that the said Bailroad Commission of Alabaam had jurisdiction to hear and determine the said complaint of plaintiff, and that its finding and decree that the said freight rate was not exorbitant or an unjust discrimination against plaintiff is a bar to the prosecution of plaintiff’s alleged claim.
    What occurred in reference to the bill of exceptions and the certiorari to bring up the other bill of exceptions and the matters inserted therein sufficiently appear in the opinion of the court. The trial court in its oral charge to the jury used the following language: “Plaintiff must prove to your reasonable satisfaction both that the rate was unreasonably high, and, further, plaintiff must prove with reasonable certainty what would be a reasonable rate, before plaintiff is entitled to recover. * * * The law gave the railroad a right' to make a special rate to the iron industry.” The plaintiff excepted to these parts of the oral charge. There were numerous other rulings on demurrers, requested instuctions, etc., not discussed in the opinion, and therefore not necessary here to be set out. There was verdict and judgment for the defendant, and plaintiff appealed.
    Blackwell & Agee, for appellant.
    The court erred in sustaining defendant’s objection to the questions propounded by plaintiff to its witness Goodwin. — Lotspeick & Poncler v. O. B. R. & Banking Co., 73 Ala. 306; 1 Gréenleaf Evid., § 101.
    The court erred in admitting in.evidence tbe opinion of tbe Railroad Commission.
    Tbe court’s oral charge exacted too high a degree of proof. It is only necessary that the jury be reasonably satisfied of the correctness of plaintiff’s contention. — 4 Mayfield pp. 597-8-9.
    The court erred in refusing instructions requested by appellant. — M. & M. R. R. Co. v. Steiner, et al., 61 Ala. 569; L. E. & St. L. R. Co. v. Wilson, 18 L. R, A. 105; Heuscerman v. B. C. R. & N. Có., 16 A. & E. R. R. Cases, 46; Chicago & A. R. R. Co. v. Chicago V. & W. C. Co., 79 111. 121; Peters v. Marietta R. Co., 18 A. & E. R. R. Cases, 492; Holmes v. So. R. R. Co., 8 Int. R. R. Com. Rep. 561; § 3460, Code 1896; 6 Oye. pp. 372, 49&
    Knox, Acker & Blackman, attorneys for appellee.—
    The bill of exceptions set up in response to the certiorari being different from the bill of exceptions contained in the original transcript, the return from the certiorari must be regarded as the true bill of exceptions, and the opinion of the Railroad Commission not being properly shown therein cannot be considered for any purpose.— Frieder v. Goodman Mfg. Co., 101 Ala. 242; A. G. S. R. R. Co. v. Dobbs, 101 Ala. 219. There was no error in the clerk in inserting the given charges in the bill. — Mobile Savings Bank v. Fry, 69 Ala. 348; M. & B. R. R. Co. v. Ladd, 92 Ala. 288. , .
    The charges and the opinion of the Railroad Commission are hot sufficiently identified in the bill of exceptions. — Parsons v. Woodward, 73 Ala. 348; Pierce v. Clements, lb. 256; Kyle v. Gadsden, 96 Ala. 276; Elliott v. Round Mountain, 108 Ala. 640. Where the bill of exceptions does not contain all the evidence, it will be presumed that there was evidence in the case sufficient to support the judgment of the lower court, and the case will be affirmed. — Evansville, etc. Co. v. Slater, 101 Ala. 345; Wadsworth v. Williams, lb. 264. The contention of appellant is that the fact that certain iron industries enjoyed a freight rate of fifty cents per ton, while it was charged a rate of seventy cents is of itself enough to show that the rate charged is unreasonable and a discrimination. This cannot be true under the express provisions of section 3462, Code 1896. The only duty imposed upon a common carrier is that he is bound to carry for every shipper at a reasonable rate, and so long as he does so, no one can complain although it is willing to carry for other's at a rate less than reasonable. He is not bound to treat all of his patrons with absolute equality. — Fitchburg R. Co. v. Gage, 12 Gray 399; Demancho v. Ward, 23 Blatchf. (U. S.) 505; Johnson v. Pensacola etc. B. B. Co., 16 Fla. 623, 26 Am. Rep. 731. The oral charge of the court was without error. The court did not err in sustaining objection to Goodwin’s testimony. ■ — Bopper v. Chicago B- B. Co., 91 Iowa 639, 60 N. W. 487; Smyth v. Ames, 169 U. S. 464. The money having been voluntarily paid with full knowledge of the facts, in the absence of fraud or imposition cannot bb reclaimed in law or in equity. — Town of Calvaba v. Burnett, 34 Ala. 400; Pritchard v. Sweeney, 109 Ala. 651; Trustees v. Keller, 1 Ala. 406; Raisler v. Mayor, 56 Ala. 195.
   ANDERSON, J.

The bill of exceptions in this case sent up as the return to the writ of certiorari, being different from the one contained in the transcript as originally filed, must be regarded bv us as; the true and correct record. — Alabama Great Southern R. R. v. Dobbs, 101 Ala. 219, 12 South. 770 ; Pearce v. Clements, 73 Ala. 256. The bill of exceptions in the original transcript, as wrell as the one sent up as a return to the certiorari, each recites that it contains “substantially all the evidence” ; but they both recite that turn certain opinions of the Railroad Commission were introduced in evidence. The last bill of exceptions does not set out said opinions, but recites that opinions of certain dates were introduced, and then instructs the clerk to set out one being of a different date. Should we be permitted under the rules to consider the two bills of exceptions in connection with each other, it would be of no benefit to the appellant, as the opinions as set out in the original record are not of the date as mentioned in either one as to the ones that were in fact introduced, and do not answer to the description of those ordered to be inserted. “It is a rule now inflexibly settled in our practice, by a long current of decisions, that this court will not establish a bill of exceptions, nor award a certiorari to bring it up as a part of the record, even if signed, where there are blanks in material parts of the instrument, and the papers intended to be inserted are not properly identified.” — Pearce v. Clements, 73 Ala. 256 ; Parsons v. Woodward, 73 Ala. 348 ; Kyle v. Gads-den Land & Improvement Co., 96 Ala. 376, 11 South. 478 ; Elliott v. Round Mountain Co., 108 Ala. 646, 18 South. 689 ; Tuscaloosa County v. Logan, 50 Ala. 503 ; Strawbridge v. State, 48 Ala. 308 ; Garlington v. Jones, 37 Ala. 240 ; Looney v. Bush, Minor, 413. Nor does the certificate of the clerk to the x^eturn, that “the opinions set out were the only ones on file,” help matters. They . may be the only ones on file when the certificate was made up, but do not appear to be the identical ones that were introdixced in evidence. — Parsons v. Woodtoard, supra.

The trial court did xxot err in sustaining defendant’s objection to the question to witness Goodwin, “How much did the L. & N. R. R. charge for hauling coal froxn Blossburg and Birmingham to Gadsden axxd Alabama City?” Even if admissible to show charges of other' carriers, it certainly ought to be confined to a comparison between the points involved, and xxo.t extexxd to the inquiry of what a carrier xxot a party to the suit was charging for hauling coal to a point distinct froxn the ones material to the issxxe. Besides, the plaintiff was xxot hurt by the action of the court, as it had just been permitted ■ to prove what the Louisville & Nashville Railroad charged for hauling coal to Anniston, thus getting the benefits of the comparison of rates between the points involved.

We caxxxxot reverse the trial court for sustaining an objection to the qxxestioxx, “Has the traffic increased on the Southern Railway since 1899, and was not the traffic greater since 1899 than it wag for two years prior thereto?” If not otherwise illegal, it was leading and suggestive.

Even if Kennedy could state what was considered among railroad men as a reasonable rate, the objection was properly sustained, as the question had no reference to the rate between the points at issue. What might be a reasonable rate over one road might not- be over another, or even between different points on the same road.

There was no error in not permitting the plaintiff to prpve what -defendant charged from Chattanooga to points in Tennessee and Kentucky. The conditions in Tennessee and Kentucky may be quite different from what they are in Alabama. What may be a reasonable rate in one state may be unreasonable in another. In order to make the rate in one state evidence of what is reasonable in another state, circumstances and conditions must be similar, and proof of what was charged in Tennessee and Kentucky was certainly not admissible until it was first shown that conditions were substantially the same as applied to the road in Alabama.

The return shows that an opinion of the Railroad Commission, rendered October 7, 1901, ivas introduced in evidence, and the appellant contends that it was error as said opinion could have no application to freight charges previous to the rendition thereof. It is true that the determination of the commission, under section 3496 is prima facie, evidence only of charges made subsequent to the determination, and does not ■apply to charges collected previous thereto; but we cannot hold that the trial court improperly admitted the. opinion iu evidence, as the third and fourth counts contain claims for charges collected after the opinion was rendered. If the evidence supported any part of the complaint, it was not error to let it in; and if it had no reference to other parts of the claim, it was incumbent upon the party against whom it was introduced to have it limited.

The first part of the oral charge excepted to was erroneous. It required the plaintiff to prove to the “reasonable certainty” of the jury, and which required too high a degree of proof. — Battles v. Tollman, 96 Ala. 403, 11 South. 247 ; 3 Mayfield’s Dig. pp. 597, 598.

Appellee insists that, since the bill of exceptions does not contain all the evidence, -thm court will presume there was evidence offered to support the action of the-trial court, and cites Wadsworth v. Williams, 101 Ala. 264, 13 South. 755. We understand Justice Coleman to mean in said case that where charges are ashed, postulated on certain facts, and the hill of exceptions does not set out all the evidence, this court will presume there was evidence that would justify the action of the trial court in giving or refusing said charges. That- rule can have no application to the oral charge excepted to in the case at bar, as it exacted too high a degree of proof of the plaintiff and was an incorrect statement of the law.

As this case must be reversed, and as the record fails to disclose a complete history of the trial in the court below, we will not attempt to consider the other assignments of error.

The judgment, of the city court is reversed, and the cause remanded.

Haralson, Tyson, and Simpson, JJ., concur.  