Missouri-Kansas-Texas R. Co. v. Sinclair Prairie Oil Co.
| Decision Date | 03 June 1940 |
| Docket Number | No. 1961.,1961. |
| Citation | 112 F.2d 553 |
| Parties | MISSOURI-KANSAS-TEXAS R. CO. v. SINCLAIR PRAIRIE OIL CO. |
| Court | U.S. Court of Appeals — Tenth Circuit |
M. D. Green, of Oklahoma City, Okl., and Robert Thompson, of Dallas, Tex. , for appellant.
Summers Hardy, of Tulsa, Okl. (Edward H. Chandler and Paul B. Mason, both of Tulsa, Okl., on the brief), for appellee.
Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.
The judgment from which this appeal is prosecuted is based upon an order of the Interstate Commerce Commission by reason of certain overcharges arising out of collection by the Fort Smith & Western Railway Company, initial connecting carrier, of through transportation charges on seven tank car shipments of casinghead gasoline from Boley, Oklahoma, to Meraux, Louisiana, in December, 1938.
Demurrer on part of appellant to complaint on ground that cause of action was barred by limitation being overruled, answer was filed and case submitted to the court without intervention of a jury, and a finding was made and judgment rendered in favor of appellee.
The assessed rate on the shipments moving between points of origin and destination had been duly filed with the Interstate Commerce Commission. A rate of 45.5 cents from Boley to New Orleans over the through route of movement is shown in Southwestern Lines Tariff No. 79-K, Section 1, page 28, J. E. Johanson's I. C. C. No. 2037, then in force. In Exhibit "A", attached as part of plaintiff's (appellee) complaint, it is alleged: "The charges assessed were based upon an inapplicable rate of 45.5¢ per cwt., published in Southwestern Lines Tariff No. 79-K, Section 1, page 28, J. E. Johanson's I. C. C. No. 2037."
In paragraph 4 of defendant's (appellant) answer this allegation is admitted, and such admission is incorporated in paragraph 5 of agreed statement of facts.
In Exhibit "B" (Report of the Interstate Commerce Commission) attached as part of plaintiff's (appellee) complaint, it is found by the Commission that the rate charged was inapplicable, and that the lawful rate was 33 cents per hundred weight.1
By joining in the establishment of a through route and through rates from Boley, Oklahoma, to New Orleans, Louisiana, the appellant with the other carriers participating therein constituted their lines of railroads a unit as to such route and rate.2
Appellant admits, paragraph (c), that it authorized the assessment by the Fort Smith & Western of the joint rate established and published in the tariff under its concurrence and sanction and that said Fort Smith & Western acted as its authorized agent to the extent of collecting charges on appellee's shipments based upon a through rate legally published and in effect at time of shipment, but insists that the collection of the excess charges was the sole and individual act of the Fort Smith & Western, and that it is not legally liable therefor, either jointly or otherwise. The authority of the Fort Smith & Western as agent in the premises is not limited to the extent as contended. By publishing through rates over the through route from Boley to New Orleans, the defendant (appellant) and other carriers whose lines constituted said through route delegated to the Fort Smith & Western authority to accept shipments over said through route which included the determination as to classifications of commodities offered for transportation, and the computation of the rate thereon, and the collection of charges therefor, and operated as an invitation to the public to initiate transportation at Boley, and there to deliver commodities for transportation over the Fort Smith & Western on such through route to point of destination.
The contention by appellant that Fort Smith & Western was its agent for the limited purposes only of receiving shipment for transportation and collection of rates not in excess of the duly published tariffs is untenable. Accepting the benefit of the act of its agent, it cannot repudiate its responsibility for its acts in excess of its proportion of the legally applicable rate. The sums actually collected by the Fort Smith & Western for the transportation of said shipments was in accordance with rates duly established, in which appellant participated, over said through route, in a legal rate not applicable to the shipments involved. The agency of the Fort Smith & Western for the defendant (appellant) and other participating carriers as to the rate actually collected may not be so separated and limited.3
Appellee's action of statutory origin4 is based upon a violation of the provisions of Section 8 of the Interstate Commerce Act, 49 U.S.C.A. § 8, liability of appellant not being upon contract or the ratification of a contract, but on account of its participation in the tort complained of, towit, the exaction of a rate in excess of that according to the legally applicable tariff.5
In Illinois Powder Manufacturing Co. v. Chicago, P. & St. L. R. Co., 165 I. C. C. 127, it is said:
In National Screw Manufacturing Company v. New York, Chicago & St. Louis R. R. Co., 155 I.C.C. 209, it is said: "It is not necessary in a complaint alleging overcharge with respect to a shipment over a route over which a joint rate was applicable thereon to name all the carriers participating in the transportation since the collection of an overcharge is a tort for which all the carriers are jointly and severally liable."
In Atlantic Coast Line R. Co. et al. v. Smith Bros., Inc., 5 Cir., 63 F.2d 747, 748, it is said: "It is the settled rule of the Commission that, `if a through rate, joint or combination, is found unreasonable and reparation is awarded the order entered runs against the carriers, collectively, that participated in the transportation' * * *" (authorities cited7).
In Texas & Pac. R. Co. et al. v. Louisiana Oil Refining Corp., 5 Cir., 76 F.2d 465, certiorari denied 295 U.S. 767, 55 S.Ct. 926, 79 L.Ed. 1708, the record not disclosing as to which carrier collected the excessive rate nor whether all the carriers participated in the distribution of the excess, the judgment of the trial and appellate court, both of which held all the carriers jointly and severally liable, was sustained.
In Hygrade Food Products Corp. v. Chicago, M., St. P. & P. R. Co. et al., D.C., 10 F.Supp. 767, the rates charged and collected being in excess of the lawful rates, and Indiana Harbor Belt R. R. Company being the switching carrier at Chicago in handling the shipments between the termini of the initial and final carrier, and not having participated in fixing the combination rates, and its charge being absorbed by the two main carrying roads under the tariff provisions, it was held liable, as it received compensation out of the charges made by the two main carriers, and to be a proper party. Both the Chicago, Milwaukee, St. Paul R. R. Company (initial carrier), and the Indiana Harbor Belt Company (switching carrier) were held liable to the plaintiff to the same extent as the final carrier.
In Baltimore & Ohio R. Co. v. Domestic Hardwoods et al., 62 App.D.C. 142, 65 F. 2d 488, infra, judgment was held to be recoverable against all the through carriers, either jointly or severally. Certiorari denied, 290 U.S. 647, 54 S.Ct. 64, 78 L.Ed. 561.
Authority cited with reliance on part of appellant did not involve question of exaction of rates in excess of published tariffs, but of discrimination between shippers of petroleum oil in barrels as related to the rates upon corresponding shipments in tank cars.8
Other cases cited by appellant involved question as to rates published and maintained being unreasonable and unjust.9
State cases cited by appellant related to excessive charge arising by reason of misrouting the shipment,10 or to separate shipping contracts, not to such continuous or through shipment,11 or to where the rate exacted by the final carrier was in excess of that given by the initial carrier which neither contracted for said excess nor participated in the distribution thereof nor adopted or ratified act of such final carrier, nor was any interstate rate, as contained in any published tariff filed pursuant to the provisions of the Interstate Commerce Act, involved.12
The Texas & Pacific Railway Company, final carrier, contends that in its railway accounting procedure, in February, 1929, after the shipments had been made, discovering the overcharge in the adjustments of its interline accounts, it made disposition of the total freight charges received by Fort Smith & Western to all participating carriers, and debited appellant for its proportion of said overcharge, and that it (T. & P. R. Co.) ultimately thereby realized only that portion of such freight charge to which it is properly entitled out of the joint rate properly applicable on said shipments, and...
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