Bush v. Miller

• Decision Date: 06 December 1919
• Docket Number: No. 2494.,2494.
• Parties: BUSH v. MILLER et al.
• Court: Missouri Court of Appeals

216 S.W. 989

205 Mo. App. 38

BUSH v. MILLER et al.

No. 2494.

Springfield Court of Appeals. Missouri.

December 6, 1919.

Appeal from Circuit Court, Lawrence County; I. V. McPherson, Special Judge.

Action by B. F. Bush, receiver of the St. Louis, Iron Mountain & Southern Railway Company, against T. A. Miller and C. B. Miller, partners doing business under the name of the T. A. Miller Lumber Company. From a judgment for defendants, plaintiff appeals. Reversed and remanded, with directions to enter judgment for plaintiff.

Barbour & McDavid, of Springfield, and J. F. Green, of St. Louis, for appellant.

Carr McNatt, of Aurora, for respondents.

BRADLEY, J.

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 11 carloads of yellow pine lumber shipped from Boswell, Ark., to Hoberg, La Russell, and Aurora, Mo., 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 100 from Boswell, Ark., to the points of destination in Missouri. That the agents, by inadvertance and mistake, collected only 10½ cents per 100 on each of said shipments of lumber from Boswell, Ark., to Hoberg, La Russell, and Aurora, Mo. The lumber was shipped from Boswell by the Wideman Saw & Planing Mills, of Boswell, Ark., 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, the only tariff in possession of plaintiff's agent at Boswell, Ark., or about the station, was a tariff fixing the legal rate at 10½ cents per 100, 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 10½ cents, instead of 13 cents. Defendant further alleged that, if any other tariff schedules fixing the rates between Boswell, Ark., and the points in Missouri, were ever filed with the Interstate Commerce Commission, 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, Ark., 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, 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, Ark., and Aurora, Mo., in accordance with the provisions of section 6 of the Interstate Commerce Act. Act Feb. 4, 1887, c. 104, 24 Stat. 380 (United States Compiled Statutes 1916, § 8569).

" The court, at the request of plaintiff, made a finding of facts and conclusions of law. Among the facts found appear the following:

"Prior to any of the shipments in controversy being made the plaintiff filed with the Interstate Commerce Commission a notice of the increase of rate on the commodities mentioned in the petition between the station of Boswell, Ark., and Aurora, Hoberg, and La Russell, Mo., of 13 cents per 100 pounds. Neither of the defendants or any other shippers of such commodities between said stations knew of the filing of such new rate, or the effort to amend the rate, and for that reason filed no protest or took any action to prevent the rate. The plaintiff did nothirg to put the new rate in effect, save and except to file a notice with the Interstate Commerce Commission the requisite number of days required by the act of Congress to put such new rate into effect; that is, the court finds that it did not publish the rate by giving notice to its station agent at either of said stations from or to which said commodities were shipped as described in said petition, nor to shippers of such commodities."

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 10½ 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-I, but none changing the 10½-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 10½ 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 agent at Boswell for the tariff rate some time in the first part of the year 1915. That he heard about the rate being raised at Boswell and asked the agent about it. "I told him [agent] I heard a report. I said: `Jim Wood says they raised the rate on us to 13 cents.' `No,' he says, `I guess not.' Just a day or two after that I had a letter from Mr. Miller telling me they had raised the rate from 10½ cents to 13 cents and for me to inquire of the agent for his authority, and I just asked him—I says, `T. A. wrote me they raised the rate to 13 cents.' He says, `When'? I says, `Some time back, they are claiming two or three months it has been changed.' He says, `Ain't nothing to that; I haven't got any dope on it.' I said, `Well, T. A. wrote me last night to come over after the rates—get the rates.' He said: `I haven't raised any, and I haven't got any authority. He is just laboring under a mistake somewhere up there. They would have notified me if they had been raised.' * * * After I commenced doing the shipping, and learned that 10½ cents was the rate, I did not make any more inquiry about it until I was over there along the first part of the year. I then asked him for the authority; that was the way I put it. He said, `I haven't raised them.' And his copy, the waybills copy book, still showed it was 10½ cents. We didn't know any better; didn't know any difference until in February or March; some time the first part of the year 1915. He didn't make any search for the tariff sheets."

This witness testified that, Jim Wood, the individual who first advised that these rates had been raised, was a lumberman at Calico Rock, Ark., and shipped lumber to Joplin and different places in Missouri.

The purpose of the Interstate Commerce Act is to make as nearly certain as possible that no discrimination between shippers will be made. In N. Y., N. H. & H. R. Co. v. Interstate Commerce Commission, 200 U. S. loc. cit. 392, 26 Sup. Ct. loc. cit. 277, 50 L. Ed. 515, it is said:

"The all-embracing prohibition against either directly or indirectly charging...