Brandon v. Lichty

• Decision Date: 19 July 1938
• Citation: 182 So. 897,133 Fla. 520
• Parties: BRANDON v. LICHTY.
• Court: Florida Supreme Court

182 So. 897

133 Fla. 520

BRANDON v. LICHTY.

Florida Supreme Court

July 19, 1938

Error to Circuit Court, Palm Beach County; C. E. Chillingworth Judge.

Action in replevin by Leonard W. Lichty against Mary L. Brandon, a feme sole, doing business as the Brandon Transfer & Storage Company. To review a judgment on a directed verdict defendant brings error.

Reversed and remanded.

COUNSEL

E. M. Baynes, of West Palm Beach, for plaintiff in error.

Buford & Prescott, of West Palm Beach, for defendant in error.

OPINION

BUFORD Justice.

Lichty delivered, at Sioux City, Iowa, a certain lot of furniture to Brady Transfer & Storage Co. to be delivered to Lichty at West Palm Beach, Florida. Brady Transfer & Storage Co. accepted the furniture for delivery by motor truck under a purported agreement contained in a letter from Brady Transfer & Storage Co. to Lichty, as follows:

'Brady Transfer & Storage Co.

'Modern--Fireproof--Secure

'Freight Forwarders And Distributors

'Warehousemen's Expert Packers

'Household Removals

'Central at Sixteenth

'Fort Dodge, Iowa

'Sioux City, Iowa

'Dec 15, 1936

'J. J. Brady, President

'We are not Common Carriers and reserve the right to accept or refuse any order for the transportation of goods.

'Mr. Leonard W. Lichty,

'3000 Pierce St.,

'Sioux City, Ia.

'Dear Sir:----

'In accordance with our understanding on moving from Sioux City to West Palm Beach, Florida, the price is $293.43, and if you decide to go to Miami, which is in the neighborhood of 70 to 90 miles further, the price will be $302.81.

'You may deduct 5% for packing on the above, namely West Palm Beach $278.76 or Miami $287.76. It is also agreed that we will haul this furniture to Fort Dodge and hold it a reasonable length of time for you to get to Florida and find your home and then wire us and we will haul it down. There will be no charge for storage but in the event that it is held in our warehouse an unreasonable length of time, there will then be a small storage charge. Also in the event that there will be more furniture put on this load than was originally agreed on our talley, there will be an extra charge.

'We trust the this is the information desired and we wish at this time to thank you for this order and will assure you that it will be taken to West Palm Beach in the very least time possible and you can be assured that it will have the best possible care and for your information, we carry plenty of insurance to protect this load.

'Again assuring you that this load is appreciated, we remain.

_________________________________ 'Yours truly,

_________________________________ 'B. E. Dunlap

_________________________________ 'Manager S. C. Office

'BED/L

'cc: Ft. Dodge Office

'Members of Iowa Warehousemens Association

'American Warehousemens Association

'National Furniture Warehousemens Association.'

By stipulation it appears that Brady Transfer & Storage Co. was at the time of the receipt of the furniture an Interstate Carrier under the Federal Motor Carrier Act of 1935, 49 U.S.C.A. § 301 et seq.; that the published rates at said time for hauls of 1101 to 1150 cubic feet inclusive for a distance of 1770 miles was $552.47; that Brady Transfer & Storage Co. delivered the furniture to Allied Van Lins Inc., at Sioux City, Iowa, and that company transported the same by motor truck in interstate transportation to West Palm Beach, Florida and tendered the same to Lichty on condition that Lichty pay the amount due for freight under the tariffs fixed by the Interstate Commerce Commission.

The record shows that the amount due for freight under the tariffs fixed and published by the Interstate Commerce Commission was $552.47. Lichty refused to pay the freight demanded. Allied Van Lines, Inc., stored the shipment in the warehouse of defendant for delivery upon the payment of the freight demanded. Lichty demanded delivery of the shipment to him on the payment of the amount named in the letter from Brady Transfer & Storage Co. to him.

Delivery being refused, Lichty filed replevin action.

The sole question is whether the amount of freight which Lichty was required to pay was the sum named in the letter, supra, or the amount fixed by the published tariffs of Interstate Commerce Commission.

The lower court directed verdict in favor of defendant for the amount named in the letter.

We must hold this to be error.

If Brady Transfer & Storage Co. was a carrier in Interstate Commerce by motor, it was without power to make a contract to transport any shipment of goods in interstate carriage for any charge of freight either more or less than that fixed by the published tariffs of Interstate Commerce Commission. Section 317(b), 49 U.S.C.A., of the involved 1935 Transportation Act, provides;

'(b) Deviation from rates and regulations enumerated in tariff forbidden; undue preferences. No common carrier by motor vehicle shall charge or demand or collect or receive a greater or less or different compensation for transportation or for any service in connection therewith between the points enumerated in such tariff than the rates, fares, and charges specified in the tariffs in effect at the time; and no such carrier shall refund or remit in any manner or by any device directly or indirectly, or through any agent or broker or otherwise, any portion of the rates, fares, or charges so specified, or extend to any person any privileges or...