Brookhaven Lumber & Mfg. Co. v. Mississippi Cent. R. Co

• Decision Date: 21 April 1928
• Docket Number: 27287
• Citation: 122 So. 472,154 Miss. 303
• Parties: BROOKHAVEN LUMBER & MFG. CO. v. MISSISSIPPI CENT. R. CO
• Court: Mississippi Supreme Court

122 So. 472

154 Miss. 303

BROOKHAVEN LUMBER & MFG. CO. v. MISSISSIPPI CENT. R. CO

No. 27287

Supreme Court of Mississippi

April 21, 1928

(Division B.)

CARRIERS. Contract with reference to freight rates is subject to power of state commission and Federal Interstate Commerce Commission to promulgate and approve rates; shipper cannot recover freight in excess of agreement unless rate was promulgated and approved by state and federal commissions.

Where a patron of a railroad makes a contract with said railroad with reference to freight rates upon a commodity, he does so subject to the power of the railroad commission of the state and the Interstate Commerce Commission of the United States to make, promulgate and approve the rates, and subject to the duty of both the railroad and its patrons to abide by the tariffs or rates so made; and unless the rate has been promulgated and approved by the said commissions, a suit cannot be maintained for payment of freight collected according to the tariff In force, but in excess of an agreement made in reference thereto between the railroad company and its patrons.

Division B

APPEAL from chancery court of Forrest county.

HON. T P. DALE, Chancellor.

Suit by the Brookhaven Lumber & Manufacturing Company against the Mississippi Central Railroad Company. Judgment of dismissal, and complainant appeals. Affirmed.

Judgment affirmed.

J. Morgan Stevens, of Jackson, and A. F. Kelly, of Hattiesburg, for appellant.

Where there is no applicable tariff on file with the commission and its charges are not unjust or unreasonable and do not unjustly discriminate between its patrons, similarly circumstanced, a railroad is free within the limits of the charter to contract to carry freight as at common law.

C. N. O. & T. P. R. Co. v. Interstate Commerce Commission, 162 U.S. 939; E. L. Young Heading Co. v. Payne, 127 Miss. 48; Forsee v. A. G. S. R. R. Co., 63 Miss. 66.

T. Brady, Jr., of Brookhaven, and Hannah & Simrall, of Hattiesburg, for appellee.

A contract with a railroad with reference to freight rate is subject to the power of the state commission and Federal Interstate Commerce Commission to promulgate and approve rates; and a shipper cannot recover freight paid in excess of agreement unless the rate was promulgated and approved by the state and Federal Commissions.

Southern R. Co. v. Buckeye Cotton Oil Co., 126 Miss. 562, 89 So. 228; 4 R. C. L. 606, sec. 77; 10 C. J. 514, sec. 833; Armour Packing Co. v. United States, 209 U.S. 52, 56 Law. Ed. 681; Seaman v. Minneapolis R. R. Co., 127 Minn. 180; Minneapolis R. R. Co. v. Menasha Wooden Ware Co., 159 Wisc. 130, L. R. A. 1915.

OPINION

ETHRIDGE, P. J.

Appellant was complainant in the court below and filed its bill against the railroad company to recover seven thousand four hundred seven dollars and six cents, the alleged overpayment of freight on logs shipped by appellant to its mill at Hattiesburg, Miss., over the lines of appellee, and also to recover nine thousand six hundred eighty-one dollars and eighty-four cents because of the failure of appellee to provide cars, equipment, and transportation for the logs and timber. The contract relied upon as to the overpayment of freight was entered into and dated March 7, 1906, and read as follows:

"This agreement entered into this the seventh day of March, 1906 between the Mississippi Central Railroad Company, party of the first part and the Brookhaven Lumber and Mfg. Co., of Hattiesburg, Mississippi, party of the second part, Witnesseth; That the party of the first part agrees to put in a switch from their line to the present site of the plant of the party of the second part just south of Hattiesburg without cost to the party of the second part. That the party of the first part also agrees to give to the party of the second part the same rates on business as they may enjoy from the G. & S....