Alabama Great Southern R. Co. v. F. A. Hulett & Son

• Decision Date: 12 January 1931
• Docket Number: 28959
• Citation: 131 So. 814,159 Miss. 333
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. F. A. HULETT & SON
• Court: Mississippi Supreme Court

131 So. 814

159 Miss. 333

ALABAMA GREAT SOUTHERN R. CO. v. F. A. HULETT & SON

No. 28959

Supreme Court of Mississippi

January 12, 1931

Division B

1 CARRIERS. Privilege extended 6y carrier of unloading part of interstate shipment with through rate privilege at intermediate point was illegal, tariffs permitting no such privilege (49 U. 8. C. A., section 6(1) and (7)).

The shipment consisted of two carloads of iron beds consigned from K., Wis., to M., Miss., and bill of lading contained provision for stop-over at T., Ala., to partly unload. One of car moved through to M., Miss., without stoppage, and one car was stopped at T., Ala., and partly unloaded, and balance of load was then moved from T., Ala., to M., Miss., on original bill of lading. 49 U.S.C. A., section 6(1) provides that tariffs shall state separately all privileges granted or allowed, and section 6(7) provides that no carrier shall extend to any shipper any privileges or facilities, except such as are specified'in tariffs.

2 CARRIERS. Evidence.

Carrier and consignee were affected with notice of tariffs and were presumed to know law.

3 EVIDENCE.

There is always presumption in law of right doing.

4. CARRIERS.

Where consignee was improperly permitted to unload part of interstate shipment at intermediate point, consignee was liable for through rate, over entire distance, plus local rate on goods removed from destination back to intermediate point (49 U.S.C. A., section 6(1) and (7)).

HON. J. D. FATHEREE, Judge.

APPEAL from circuit court of Lauderdale county, HON. J. D. FATHEREE, Judge.

Action by the Alabama Great Southern Railroad Company against F. A. Hulett & Son, commenced in the county court. Judgment for defendant was affirmed by the circuit court, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Bozeman & Cameron, of Meridian, for appellant.

The only lawful thing which the railroad company could do under the circumstances was to permit the consignee, Hulett, to stop the car at Tuscaloosa for partial unloading and to collect the freight from Kenosha to Tuscaloosa as fixed by the tariffs, and then, when the car moved from Tuscaloosa to Meridian, to charge the tariff rate from Tuscaloosa to Meridian on that part of the shipment which moved from Tuscaloosa to Meridian.

Interstate Commerce Act, U.S.C. A., Title 49.

An agreement with any particular shipper to expedite a shipment at regular rates, even where no rate has been established for special expediting, is an unlawful discrimination within the meaning of this Act; that a carrier cannot legally contract with a particular shipper for an unusual service, unless he make and publish a rate for such service equally open to all.

Railroad Co. v. Kirby, 225 U.S. 155, 56 L.Ed. 1033; Bergin v. M. K. & T. Ry. Co., 105 S.W. 1184; C. & A. Ry. Co. v. Kirby, 225 U.S. 156; Lexington Compress Co. v. Y. & M. V. R. Co., 131 Miss. 49, 95 So. 92; Priebe v. Southern Railway Co., 200 Ala. 81, 75 So. 409; Sheldon v. Chicago, etc., Ry. Co., 169 N.W. 189; L. & N. R. R. Co. v. Cleaver, 211 Ala. 661, 101 So. 597.

A strict adherence to the published rates and charges is absolutely essential to avoid discrimination and preference between shippers. Neither estoppel, ignorance of the shipper, nor a mistake of carrier's agent can defeat the prime purpose of the law that the shipper must pay and the carrier must collect, the lawful published rate.

Pittsburgh, etc., R. Co. v. Fink, 250 U.S. 577.

If it be conceded that under the conference rulings cited the carrier should have called the shipper's attention to the fact that there was no partial unloading privilege at Tuscaloosa, it does not appear in this record that there was any other route from Kenosha to Meridian passing through Tuscaloosa, which provided any such unloading privilege; nor does it appear that there was any combination of rates available under the schedules permitting the partial unloading at Tuscaloosa which would have been less than the rates sued for in this case.

The courts will not take judicial notice, either of conference rulings made by the Interstate Commerce Commission, or of their orders, or even of their published reports; but if any of them are relied upon by any litigant, they must be both pleaded and proven.

Robinson v. B. & O. R. R. Co., 222 U.S. 506 (511), 56 L.Ed. 288.

D. C. Callon, of Meridian, for appellee.

It is true in the agreed statement of fact it was affirmatively stated that the tariffs of the Alabama Great Southern Railroad, over which the shipment moved to Tuscaloosa and thence to Meridian, did not provide for a stopover privilege at Tuscaloosa for partial unloading, from which appellant concludes that the through rate should be set aside and shipment be subjected to a combination of three local rates. We submit, however, that the failure of the tariff governing the through rate to specifically provide for a stop-over privilege, is not controlling, as this tariff in question, as is true with all tariffs, carries a blanket provision with respect to privileges of this character.

We submit that the burden of proving the rate inapplicable under the attending circumstances was upon appellant (plaintiff below), which burden they have failed to carry.

The appellant contends that because the conference rules of the Interstate Commerce Commission were rescinded in their entirely, by an executive order of the commission, that such rules now have no force or effect. We point to the fact that these rules were in effect and represented the law, as defined by the Interstate Commerce Commission, at the time when this cause of action arose.

As further evidence of the probative value of these rules, we refer to Jefferson Lumber Co. v. Mobile & Ohio R. R. Co. et al., 40 I. C. C. 43.

Had this shipment in question moved to Meridian without stopping at Tuscaloosa, it would have been subjected to the tariff charge as published under appellant's interpretation. But for the service of stopping this car at Tuscaloosa, thereby transporting a lesser tonnage to Meridian, they asked for an additional amount of one hundred eighty-one dollars and forty-two cents and it therefore appears that to exact this amount for a service such as performed is prima facie unreasonable and contravenes the first section of the Act.

The mere fact of applying the combination of local rates shows a non-compliance with the provisions of the bill of lading, because the bill of lading carried the through published rate, and to apply a combination of locals would destroy the provision that the through rate would apply. Therefore, it is beyond question a fact that all of the provisions of the bill of lading could not be complied with. There was therefore a conflict in this instrument and under the conference rulings of the commission referred to, the initial carrier should have removed the conflicting provisions or assumed liability.

If the court holds that the conference rulings are properly before them, then we submit that they have a direct bearing on the case at bar, and that the court should take judicial notice thereof.

The carriers are under obligation to charge the cheapest available rate via the route of movement. If the published through rate is for any reason inapplicable then the cheapest rate, whether joint, through, or combination, must be applied. The sum of the locals to and from Meridian, Mississippi, not being before the court, we do not believe should be considered, but the law does impose upon the carrier the duty of charging the cheapest rate via the route of movement, and the burden of proof rests upon the carrier to show that the rate which they charged, or seek to charge, is the cheapest published rate.

OPINION

Anderson, J.

Appellant brought this action against the appellees in the county court of Lauderdale county to recover the sum of one hundred eighty-one dollars and forty-three cents, an alleged undercharge on two carloads of iron beds shipped to the appellees from Kenosha, Wisconsin, to...