American Ry. Express Co. v. Mohawk Dairy Co.

• Decision Date: 20 September 1924
• Parties: AMERICAN RY. EXPRESS CO. v. MOHAWK DAIRY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

250 Mass. 1

144 N.E. 721

AMERICAN RY. EXPRESS CO.

v.MOHAWK DAIRY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 20, 1924.

Report from Superior Court, Suffolk County; R. W. Irwin, Judge.

Action of contract by the American Railway Express Company against the Mohawk Dairy Company to recover charges for transportation of two shipments of empty milk cans from a point in New York to a point in New Hampshire. On report. Judgment for defendant.

A. M. Pinkham, of Boston, for plaintiff.

F. A. Pierce, of Boston, for defendant.

RUGG, C. J.

This is an action of contract by a common carrier to recover charges for transportation of two shipments of empty milk cans from New York, in the state of New York, to Colebrook, in the state of New Hampshire.

Facts agreed at the trial were that the plaintiff was a common carrier in interstate commerce and prior to the crucial dates had filed with the Interstate Commerce Commission its schedules of rates, rules and regulations applicable thereto; that the defendant owned the milk cans shipped from New York to Colebrook, and that the shipments were made by the Reid Ice Cream Company and were carried by the plaintiff from New York to Colebrook, where they were offered for delivery to the defendant which refused to accept them.

There was testimony to the effect that the defendant had one place of business at Colebrook, N. H., and another at Boston in this commonwealth; that the defendant sent shipments of cream from Boston to the Reid Ice Cream Company in New York City in cans belonging to the defendant marked with brass tags bearing its initials; that in 1921, prior to the shipments here in question, it had sent six shipments of cans which had originally come from Colebrook, 32 of Classification. they were taken by the defendant in its own trucks to Boston and there shipped by it through the plaintiff to the Reid Ice Cream Company in New York, the defendant prepaying express charges for transportation and receiving the plaintiff's uniform express receipt in each instance. The defendant gave the Reid Ice Cream Company no instructions as to returning the empty cans, but expected that the cans being sent to and in the hands of the Reid Ice Cream Company would be returned to Boston by express free of charge; ‘that it the way of the trade’; that it was not necessary in the milk and cream industry to give instructions as to the method by which empty cans should be returned. Out of a total of 1,575 cans thus shipped from Boston to New York, all except 725 cans, which went to Colebrook, and charges on which are the subject of this action, came back to Boston over the lines of the plaintiff free of charge, each bearing at the time of return tags on which was:

‘Mohawk Dairy Co., Boston, Mass.

‘The Reid Ice Cream Co.

‘Brooklyn-New York-Jersey City.’

The cans which were sent to Colebrook bore a tag of this tenor:

‘Mohawk Dairy Company,

‘Colebrook, N. H.

‘Grade B Cream.

‘Pasteurized Oct. 12, 1921.’

The two shipments of empty cans, charges for transportation of which are here in suit, were delivered to the plaintiff at its place of business in New York by the Reid Ice Cream Company as shipper to whom the original ‘uniform express receipt’ in each instance was given. Each of the receipts bore on its face the word ‘Collect.’ The first receipt stated that the plaintiff had--

‘Received from Reid's Ice Cream, address, Brooklyn, * * * 152 empty milk cans consigned to Mohawk Dairy Co., at Colebrook, N. H.’

The agent for the plaintiff testified that the first receipt was signed by himself as agent for the plaintiff, and that he wrote the words in the place for the signature of the shipper because the truck driver who delivered the cans did not wait and he had to give him the receipt. The receipt for the second shipment was signed by the driver of the Reid Ice Cream Company as shipper, but in other respects, except for numbersof cans, the two receipts were of the same tenor. He also testified that he did not know that the cans had come from Boston or from any other place. ‘Material extracts' from the Official Express Classification No. 27 and Supplement No. 3 thereto alone are in the record. They are as follows:

‘American Railway Express Company,

‘In Connection with Canadian Express Company, Canadian National Express Company, Dominion Express Company, Newfoundland Express Company.

‘Official Express Classification No. 27 and Supplement No. 3.

‘Rules.

‘1-Application of Rates and Charges.

‘(a) First class rates are applicable to all property received for transportation by the companies parties to this classification, unless otherwise hereinafter provided. * * *

‘Page 32.

‘21. Empty Carriers-Other Than Returned.

‘Empty carriers, new or old, not otherwise specified, when the transportation is not a return movement, must be charged gross weight at the rate applicable on the commodity shipped in such carriers, but the rate per 100 lbs. applied must not be more than the first-class rate. Subject to the rules and minimum charges applicable to the commodity transported in such carriers when they are filled.’

The foregoing was amended by Supplement No. 3, as follows:

‘Page 32, item 21-A, cancels item 21, page 32 of classification.

‘(A) Empty Carriers, Other Than Returned.

‘Empty carriers, new or old, not otherwise specified, when the transportation is not a return movement.

‘(A) Denotes increase.

‘Page 32.

‘24. Empty Carriers Returned.

‘Page 32, item 24-A, cancels item 24, page 31 of Classification.

‘(A) Empty Carriers Returned.

‘Charges must be prepaid unless an agreement has been made with the owner of the carriers, whereby they may be returned with charges ‘to collect.’

‘The charges given hereinafter, unless otherwise provided, cover the transportation of returned empty carriers which were shipped when full over the lines of the company or companies by which they are returned from original destination, or when reshipped from final destination to the point from which the filled carriers were originally shipped. The charges defined include wagon service within established delivery limits at points where such service is maintained, unless otherwise provided.

‘10. Cream and Milk Empties.

‘Cans each 15c.

‘Empty cans returned by the company which carried them, when full must be receipted for, and when delivered at the depot by the shipper and taken from the depot by the consignee must be returned free.’

[1][2] This being an action respecting charges for transportation in interstate commerce, the issues must be decided according to the paramount United States statutes, so far as they are applicable. Where not controlled by such statutes, the rights of the parties are to be adjusted according to the relevant principles of the common law. The Interstate Commerce Act (U. S. Comp. St. § 8563 et seq.) imposes no obligation upon a particular party to pay transportation charges. The tariff does not provide by whom such charges must be borne. So far as disclosed on this record:

‘As to these matters carrier and shipper were left free to contract, subject to the rule which prohibits discrimination.’ Louisville & Nashville Railroad Co. v. Central Iron & Coal Co., 265 U. S. 59, 44 Sup. Ct. 441, 68 L. Ed. 900, decided May 5, 1924.

[3] No contention arises in the case at bar as to the amount due to the plaintiff as carrier, if the defendant is under liability.The lawful rate as established by the rates and schedules filed by the carrier must be collected. New York, New Haven & Hartford Railroad v. York & Whitney Co., 215 Mass. 36, 39, 102 N. E. 366.

[4] The parties agreed in the superior court that there was no issue of fact for the jury. Each party requested that a verdict be directed in its favor. The case has been presented and argued to us by both parties on the theory that a pure question of law is raised. It is considered and decided on that footing. Pittsburgh, Cincinnati, Chicago & St. Louis Railway v. Fink, 250 U. S. 577, 40 Sup. Ct. 27, 63 L. Ed. 1151;New York Central & Hudson River Railroad v. York & Whitney Co., 256 U. S. 406, 408, 41 Sup. Ct. 509, 65 L. Ed. 1016.

[5][6] No bill of lading was issued by the plaintiff as carrier. It fairly is inferable that no bill of lading is issued in the express business of the plaintiff. The case at bar is therefore distinguishable from decisions like New York Central Railroad Co. v. Ross Lumber Co., 234 N. Y. 261, 137 N. E. 324, 24 A. L. R. 1160, where the relations of the parties were governed in part at least by the provisions of the standard bill of lading for transportation of freight. The rights and obligations of the parties, so far as put in writing, are stated in the uniform express receipt issued by the plaintiff. That receipt is printed in full in the record. It is short. It contains no general conditions or stipulations. Its words, so far as of consequence in this connection, already have been quoted. That receipt, by the word ‘collect’ on its face, indicates that the shipper and the carrier intended that the consignee should pay the charges. If and so far as the shipper and carrier could bind the defendant as consignee and owner, to pay the charges, they undertook to do so. The defendant cannot be held to such obligation unless it authorized the shipper to act for it or has by its own conduct rendered itself liable. There is nothing in the record which shows that by its conduct with respect to the shipment it has assumed that obligation. It refused to receive or accept the goods. It denied liability for transportation charges. The inquiry of the agent of the plaintiff at Colebrook by the agent of the defendant, whether any cans had come, falls far short of establishing such obligation. The question in its last analysis is whether the defendant authorized the Reid Ice Cream Company as shipper to act with reference to its cans so that the plaintiff can hold the defendant for the charges of transportation. The answer to that question involves...