Central of Georgia Ry. Co. v. Southern Ferro Concrete Co.

• Decision Date: 20 May 1915
• Docket Number: 77
• Citation: 68 So. 981,193 Ala. 108
• Parties: CENTRAL OF GEORGIA RY. CO. v. SOUTHERN FERRO CONCRETE
• Court: Alabama Supreme Court

68 So. 981

193 Ala. 108

CENTRAL OF GEORGIA RY. CO. v. SOUTHERN FERRO CONCRETE

No. 77

Supreme Court of Alabama

May 20, 1915

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

Action by the Central of Georgia Railway Company against the Southern Ferro Concrete Company. Judgment for defendant, and plaintiff appeals. Affirmed.

London & Fitts, of Birmingham, for appellant.

Stokely Scrivner & Dominick, of Birmingham, for appellee.

THOMAS J.

During the years 1906 and 1907 the Southern Ferro Concrete Company bought of Kirkpatrick Sand & Cement Company and Alabama Sand & Supply Company a large quantity of sand, including the sand mentioned in the complaint, at a fixed price delivered at its works on the Birmingham Terminal Station, at Birmingham, Ala. The defendant, appellee here, had no voice in the selection of the points from which the sand was to be shipped, and no interest in the freight rate to be charged for the transportation of the same from the initial shipping point to Birmingham Terminal Station. The sand was shipped from Bull Creek, in the state of Georgia, by the sand company, and was brought to appellee by the appellant. Central of Georgia Railway Company, as a common carrier engaged in interstate commerce. The freight that was prepaid by the defendant was at the request and for the convenience of the shipper, and the defendant was under no contract that would render it liable to plaintiff for these freights.

Defendant's plea alleges the above facts; also that, when the claim sued on was made against it for the claimed mistake in the amount of freights, plaintiff was informed of the true contract between defendant and the owners and shippers of the sand "who were obligated to pay" the freights, and "who were and are entirely solvent," and that the defendant did not at any time make any agreement or contract with the plaintiff or any other firm or corporation to pay the freight on said sand, and that there had been no agreement between the plaintiff and the defendant fixing the additional amount of freight due on account of said shipments. The plea was fully proved by the deposition of the witness, Thomas B. Harrison.

Appellant insists that, under the ruling of the Interstate Commerce Commission, appellant was required to collect the undercharges from the consignees. From Conference Rulings of the Interstate Commerce Commission, bulletin No. 6, ruling No. 3, made on November 4, 1907, we quote:

"3. Collection of Undercharges.--The Commission adheres to its previous ruling that carriers must exhaust their legal remedies to collect undercharges from consignees."

From the same bulletin, conference ruling No. 187, made on June 8 1909, we take the following:

"187. Interpretation of Conference Ruling No. 3.--The case upon which this ruling was made was one where freight charges were collectible from the consignee. To give it general application, the words 'from consignee' are now stricken from the rule, so that it will read:

" 'Collection of Undercharges.--The Commission adheres to its previous ruling that carriers must exhaust their legal remedies to collect undercharges.' "

Conference ruling No. 314 (same bulletin) of the Commission reads as follows:

"314. Collection of Undercharges.--The law requires the carrier to collect and the party legally responsible to pay the lawfully established rates without deviation therefrom. It follows that it is the duty of carriers to exhaust their legal remedies in order to collect undercharges from the party or parties legally responsible therefor. It is not for the Commission, however, to determine in any case which party, consignor or consignee, is legally liable for the undercharges that being a question determinable only by a court having jurisdiction and upon the facts of each case [superseding rulings 3 and 187]."

Under the Interstate Commerce Act the freight rate on an interstate shipment is the lawful rate existing at the time of the shipment, and the carrier is required to collect the lawful rate. So. Ry. Co. v. Harrison, 119 Ala. 539, 546, 24 So. 552, 43 L.R.A. 385, 72 Am.St.Rep. 936; Tex. & Pac. Ry. Co. v. Mugg, 202 U.S. 242, 26 Sup.Ct. 628, 50 L.Ed. 1011; Gulf, C. & S.F. Ry. Co. v. Hefley, 158 U.S. 98, 15 Sup.Ct. 802, 39 L.Ed. 910.

This liability for the fixed freight charges is not affected by the carrier's...