Am. Ry. Express Co., Inc. v. Peninsula Produce Exch
| Decision Date | 11 June 1925 |
| Docket Number | No. 31.,31. |
| Citation | 130 A. 346 |
| Parties | AMERICAN RY. EXPRESS CO., Inc. v. PENINSULA PRODUCE EXCH. |
| Court | Maryland Court of Appeals |
Motion for Reargument Overruled Oct. 7, 1925.
Appeal from Circuit Court, Worcester County; Joseph L. Bailey, Judge. "To be officially reported."
Action by the Peninsula Produce Exchange against the American Railway Express Company, Inc. Judgment for plaintiff, and defendant appeals. Reversed without new trial.
Argued before BOND, C. J., and URNER, ADKINS, OFFUTT, PARKE, and WALSH, JJ.
F. W. C. Webb, of Salisbury (Woodcock & Webb, of Salisbury, on the brief), for appellant.
James M. Crockett, of Pocomoke City (Crockett & Crockett, of Pocomoke City, on the brief), for appellee.
The Peninsula Produce Exchange, appellee, received an order for a carload of strawberries that it decided to forward to the purchaser in Bangor, Me., from Snow Hill, Md. The established course of its trade required this interstate transportation to be made in refrigerator cars, which were furnished by the American Railway Express Company, appellant, at the designated place of shipment, after having been iced at Berlin. The appellee accordingly gave to the appellant, on May 17, 1923, a verbal and then a written request for an express refrigerator car, which was to be placed, iced for loading strawberries, at Snow Hill, not later than Friday afternoon of May 18th. While it is true that when the car was ordered there was no express direction that it should be iced at Berlin, yet this was the usage which governed the transportation of berries in refrigerator cars from Snow Hill, and, furthermore, the delivery of an uniced car at Snow Hill for the carriage of strawberries to Maine would have been a futile act, which was not intended by the parties, and which would have been in violation of their clear, although implicit, understanding.
Between 9 and 10 o'clock on the morning of May 18th the agent of the appellee inquired of the appellant whether the car would be provided as ordered, and there is testimony that the agent said to the appellant's local representative that the appellee did not want to buy the strawberries if the car would not be furnished at the specified time. Although it is flatly contradicted by the testimony produced by the appellant, the evidence on the part of the appellee is that the appellant's agent made inquiry by telephone of his principal whether the refrigerator car would he on hand at the time desired, and assured the appellee's agent that the car would be placed at the time designated in the order, and that the appellee could safely go ahead in the buying of the strawberries to be loaded. At this time the appellee had not over a half dozen crates of strawberries at Snow Hill, and proceeded to buy and receive on consignment crates of strawberries so that 112 crates were ready for shipment on the afternoon of May 18th when the refrigerator car had been promised. The refrigerator car did not come, and about 9 o'clock at night the appellee's servants carried the strawberries to the railway freight station at Snow Hill: they there packed the strawberries and shipped them at half past 7 in the morning of May 19th in a box freight car, without icing, to New York, where they arrived at midnight May 20th, and were Sold at a loss.
The request of the shipper to the agent of the carrier that the carrier would furnish it a refrigerator car at a certain time and place, and the promise of that agent to comply with such request is a valid contract at common law. Clark v. Ulster, etc., R. Co., 189 N. Y. 93, 81 N. E. 766, 13 L. R. A. (N. S.) 164, 121 Am. St. Rep. 848, and reported and annotated in 12 Am. Cas. 883. The case of Di Giorgio Co. v. Penna. R. Co., 104 Md. 693, 65 A. 425, 8 L. R. A. (N. S.) 108, is not in conflict with this conclusion, as the proof in the case at bar, of an express promise on the part of the carrier to furnish the car desired at the specified time and place, was lacking in that case. If it be assumed that the contract on this record was not in violation of the Interstate Commerce Act (U. S. Comp. St. § 8563 et seq.), a breach of the obligation imposed upon the carrier by its terms would entitle the shipper to bring an action in either contract or in tort, at its election. But if the choice of action is in case for the tort, some clear act of negligence must be shown on the part of the carrier beyond a mere breach of the terms or the contract. The pleader brought the present case in tort, but the action was dependent upon the contract mentioned; and the rights and duties of the parties are ascertained from, and measured by, the nature of the contract. Baltimore & Ohio R. R. Co. v. Pumphrey, 59 Md. 390; Thompson v. Clemens, 96 Md 207, 209. 53 A. 919, 60 L. R. A. 580; Western Union Tel. Co. v. Lehman, 105 Md. 450, 66 A. 266.
The appellee tried his case upon the theory that there had been a negligent failure of the appellant to furnish the refrigerator car, in accordance with the stipulation of the special contract, and the proof on the part of the appellee was directed to the establishment of this default. The legal sufficiency of the proof to entitle the appellee to recover was challenged by appellant's rejected first prayer, but, as this prayer was not addressed to the pleadings, it raised for consideration whether there was a right of recovery upon the proof of a breach of duty imposed, (1) either by a special contract to furnish a refrigerator car at a particular time and place, (2) or by its general obligation as a common carrier.
1. The proof offered by the appellee in the trial of the ease tended to show that the appellant, through its agent, had made a contract to furnish a particular shipper with a refrigerator car at a prescribed time and place, for the purpose of making an interstate shipment. If such an agreement were lawful, the express company would have been bound to a strict performance of the terms of the contract, and would not have been excused for a failure to furnish the car on the day named, at the place designated, by proof of due diligence. 10 C. J. Carriers, §§ 290, 294.
The instant case is, however, one where the contract asserted by the appellee was in reference to an interstate shipment of goods by a public carrier and the transportation service by the carrier must be rendered in conformity with its published tariffs, and not pursuant to stipulations of a special contract providing for a special service. The rates and schedules of the appellant did not contemplate, nor did they provide for, an expedited interstate service, through the furnishing to a particular shipper a refrigerator car at a designated point on a day certain. On the contrary, the record before us establishes that such a preferential service was expressly prohibited. If it were allowed, the purpose of the Interstate Commerce Act, as amended, to compel the establishment of reasonable rates and nondiscriminatory service through the uniform application of relevant tariffs would be defeated. To guarantee that a special car would be furnished at a particular time and place, for the transportation of a common commodity was to create an advantage or preference which was not available to all, and which was not provided for in the published tariffs. Chicago & A. R. Co. v. Kirby, 225 U. S. 155, 164, 165, 32 S. Ct. 648, 56 L. Ed. 1033, Ann. Cas. 1914A, 501. Knowledge of the published tariffs and rules is imputed to the shipper, supra. So the shipper had either actual or imputed notice of the published tariff, and was therefore affected with knowledge, not only that the carrier could not lawfully enter into the purporting contract, because it was forbidden and declared illegal by the Interstate Commerce Act, but also that the carrier's agent at Snow Hill was expressly limited in his authority so that he "must not guarantee to provide refrigerator or other equipment," infra. Any representations of the agent at Snow Hill to the appellee beyond the known scope of his authority could not bind the appellant in a transaction with a shipper having that knowledge. 2 Mechem on Agency (2d Ed.) § 1727.
In Davis, Agent, v. Cornwell, 264 U. S. 560, 44 S. Ct. 410, 68 L. Ed. 848, the Supreme Court held that a contract by a common carrier, to provide a shipper with cars for loading, on a day certain, cattle for transportation in interstate commerce was invalid, as it was not shown or contended that the published tariffs governing the proposed shipment provided in terms for such a contract. In the course of the opinion, Justice Brandeis stated:
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