Bush v. Miller
| Decision Date | 06 December 1919 |
| Citation | 216 S.W. 989,205 Mo.App. 38 |
| Parties | B. F. BUSH, Receiver of the ST. LOUIS, IRON MOUNTAIN and SOUTHERN RAILWAY COMPANY, Appellant, v. T. A. MILLER and C. B. MILLER, Partners, Doing Business under the name of T. A. MILLER LUMBER COMPANY, Respondents |
| Court | Missouri Court of Appeals |
Appeal from Lawrence County Circuit Court.--Hon. I. V. McPherson Special Judge.
REVERSED AND REMANDED. (with directions.)
Judgment reversed and remanded.
Barbour & McDavid and J. F. Green for appellant.
(1) The laws of Congress regulating interstate shipments control over state laws on the same subject. Potter v. Railroad, 187 Mo.App. 56; Grain Co. v. Railroad, 177 Mo.App 194; Hamilton v. Railroad, 177 Mo.App. 151; Railroad v. Hooker, 233 U.S. 109, 58 L.Ed. 875; Railroad v. Hefley, 158 U.S. 98, 39 L.Ed. 910. (2) The freight rate to be paid on an interstate shipment is controlled by the rate filed with the Interstate Commerce Commission, even though not posted in the station and even though erroneously quoted by the agent to the shipper and to the shipper's subsequent loss. Railroad v Maxwell, 237 U.S. 94, 59 L.Ed. 853; Railroad v. Elevator Co., 226 U.S. 441, 57 L.Ed. 290; Railroad v. Carl, 227 U.S. 652, 57 L.Ed. 688; Railroad v. Mugg, 202 U.S. 242, 50 L.Ed. 1011; Railroad v. Hooker, 233 U.S. 110, 58 L.Ed. 875; Berwine Co. v. Railroad, 235 U.S. 371, 59 L.Ed. 275; Sloop v. Delano, 182 Mo.App. 299; Railroad v. Cisco Oil Mill, 204 U.S. 449, 51 L.Ed. 562; Bush v. Driller Co., 199 S.W. 599 (Mo. App.); Buren v. So. P. R., 26 I. C. C. 332; Portland Co. v. Railroad, 251 F. 33. (3) The lawful rate is that which the carrier must exact and that which the shipper must pay. The shipper's knowledge of the lawful rate is conclusively presumed, and the carrier may not be required to surrender the goods carried upon the payment of the rate paid, if that was less than the lawful rate, until the full legal rate has been paid. Railroad v. Maxwell, 237 U.S. 94, 59 L.Ed. 853; Railroad v. Carl, 227 U.S. 652, 57 L.Ed. 688; Railroad v. Mugg, 202 U.S. 242, 50 L.Ed. 1011; Railroad v. Hooker, 233 U.S. 110, 58 L.Ed. 875; Dunne v. Railroad, 166 Mo.App. 376; Sloop v. Delane, 182 Mo.App. 299; McFadden v. Railroad, 241 F. 565; Follmer v. Railroad, 21 I. C. C. 617. Railroad v. Hooker, 233 U.S. 110, 58 L.Ed. 875; Dayton Coal Co. v. Railroad, 239 U.S. 446, 60 L.Ed. 375; Berwine Co. v. Railroad, 235 U.S. 371, 59 L.Ed. 275; Railroad v. Elevator Co., 226 U.S. 441, 57 L.Ed. 290; Railroad v. Cisco Oil Mill, 204 U.S. 449, 51 L.Ed. 562; United States v. Miller, 223 U.S. 599, 56 L.Ed. 568; Wickwire Co. v. Railroad, 181 F. 319; Columbus Iron Co. v. Railroad, 178 F. 263; Railroad v. Feintuch, 191 F. 485; Bush v. Keystone Co., 199 S.W. 599, (Mo. App.); Franke Grain Co. v. Ill. C. R. Co., 27 I. C. C. 625; Burns v. So. P. R., 26 I. C. C. 332; Follmer v. Railroad, 21 I. C. C. 617; Spiegle Co. v. Railway, 34 I. C. C. 448; Portland Co. v. Railroad, 251 F. l. c. 34.
Carr McNatt for respondents.
(1) The tariff once established cannot be changed "except after thirty days' notice to the commission and to the public," published in same manner as original tariff, which must be promulgated. Interstate Commerce act, sec. 6, par. 3, U. S. statutes annotated, vol. 3. (a) "Promulgate" means to make known--it means that it shall be brought to the attention of those affected by it; that is, such publicity as will cause them to take notice of it. Wooden v. Western New York R. R. Co., 18 N.Y.S. 768. (b) "And from all the provisions on the subject, it is evident that the publication intended consists in 'promulgating' and distributing the tariff in printed form preparatory to putting it in affect. U. S. v. Miller, 223 U. S. Repts. 599 to 604-and nearly all cases cited by appellant. Sec. 192, p. 54, conference rulings, Interstate Commerce Com. (See also rule No. 231, pp. 76, 77 of ruling); Sec. 8, Interstate Com. Act, vol. 3, U. S. statutes annotated and authorities cited thereunder, Railroad v. Maxwell, 237 U.S. 94, and sec. 9, Inter. Com. Act.
This is a suit by the receiver of the St. Louis, Iron Mountain & Southern Railway Company to recover $ 129.50, the alleged difference between the freight paid and the amount which plaintiff claims should have been paid on an interstate shipment, according to the rates alleged to be in force and effect at the time of the shipment, on eleven carloads of yellow pine lumber shipped from Boswell, Arkansas, to Hoberg, La Russell and Aurora, Missouri, on the Iron Mountain, and to nearby points on the Frisco. The cars for points on the Frisco were shipped on the Iron Mountain to Aurora and from there by the Frisco to points of destination. It is only the Iron Mountain rate, however, that is involved here. A jury was waived and the cause tried before the court resulting in a finding and judgment for defendants. From this judgment plaintiff appealed..
All of the shipments were between November 3, 1914, and February 4, 1915. Plaintiff alleges that during this time the lawful rate as fixed by the St. Louis, Iron Mountain & Southern Railway Company, and filed with, and approved by the Interstate Commerce Commission, was 13 cents per hundred from Boswell, Arkansas, to the points of destination in Missouri. That the agents, by inadvertence and mistake, collected only 10 1/2 cents per hundred on each of said shipments of lumber from Boswell, Arkansas, to Hoberg, La Russell and Aurora, Missouri. The lumber was shipped from Boswell by the Wideman Saw & Planing Mills of Boswell, Arkansas, to T. A. Miller Lumber Company, a copartnership. Defendants paid the freight as demanded, and according to the bills of lading, at the points of destination. Defendants answered by a general denial, and set up a counterclaim. The court found against them on the counterclaim and it is out of the case. Defendants further set up in their answer that during the time of the shipments in question that the only tariff in procession of plaintiff's agent at Boswell, Arkansas, or about the station, was a tariff fixing the legal rate at 10 1/2 cents per hundred, and that no tariff schedule fixing a higher rate had ever been delivered to said agent, or posted in said station. That defendants bought the lumber to be delivered to them at the several destinations at a specified price, and were to pay the freight at the points of destination and remit the balance to the shipper. They also alleged that the only tariff schedules in the hands of the agents at the several points of destination fixed the legal rate at 10 1/2 cents instead of 13 cents. Defendant further alleged that if any other tariff schedules fixing the rates between Boswell, Arkansas, and the points in Missouri were ever filed with the Interstate Commerce Commission that such was fraudulently and surreptitiously done in order to avoid protest from shippers.
The evidence was that the rate as filed with, and approved by the Interstate Commerce Commission between Boswell, Arkansas, and the points in Missouri was 13 cents from and after November 1, 1914. But defendants contend that notwithstanding that this higher rate had been made, and had been filed with and approved by the Interstate Commerce Commission, that it was not in force and effect because it had not been published, that is, that it had not been posted and placed in the hands of the station agents and shippers over the line between Boswell, Arkansas and Aurora, Missouri in accordance with the provisions of section 6 of the Interstate Commerce Act. [United States Complied Statutes, 1916, sec. 8569.]
The court at the request of plaintiff made a finding of facts and conclusions of law. Among the facts found appear the following:
Defendant, T. A. Miller, testified that he did not call on the agent at Boswell for the rates, but that he did call on plaintiff's agent at Aurora after this controversy came up. That he asked this agent if he received any change in the rate from 10 1/2 cents, and that he was advised that no change in rate had been received. Defendant also testified that he, together with this agent, looked through the files; that he went through with them and the tariff was not changed. "I do not remember whether there were any tariffs from supplement 1 to tariff sheet 50-1, but none changing the 10 1/2 cent rate." Defendant also testified that he called on the agents at Hoberg and La Russell and that these agents said that they had no higher rate than the 10 1/2 cents, but the files in the stations at Hoberg and La Russell were not gone through.
A witness for defendant and the individual who looked after the shipping of these cars, as we understand the record, testified that he called on the...
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