Central of Georgia Ry. Co. v. Birmingham Sand & Brick Co.

• Decision Date: 18 December 1913
• Citation: 64 So. 202,9 Ala.App. 419
• Parties: CENTRAL OF GEORGIA RY. CO. v. BIRMINGHAM SAND & BRICK CO.
• Court: Alabama Court of Appeals

64 So. 202

9 Ala.App. 419

CENTRAL OF GEORGIA RY. CO. v. BIRMINGHAM SAND & BRICK CO.

Court of Appeals of Alabama

December 18, 1913

Appeal from City Court of Birmingham; C.C. Nesmith, Judge.

Assumpsit by the Central of Georgia Railway Company against the Birmingham Sand & Brick Company. From a judgment for defendant, plaintiff appeals. Reversed and rendered.

It is agreed in the above-styled cause that the following are the facts: That during the years 1909 and 1910, defendant purchased from the Columbus Concrete Supply Company of Columbus, Ga., certain car loads of sand, to wit, 63 car loads, which were shipped from the sand pit of the said Columbus Concrete Supply Co., at Bull Creek, Ga., a station on the Seaboard Air Line Railway, via that line to Columbus Ga., thence over plaintiff's line to Birmingham, Ala. That the shipment of each car was a separate and distinct transaction, and that the charges for freight on each car were demanded and collected by plaintiff's agent at Birmingham, Ala., upon the arrival of each car at Birmingham Ala., and that the defendant paid plaintiff's agent the freight so demanded. That the said station at Bull Creek Ga., on the Seaboard Railway, was a point at which the said carrier had no agent, and that the bills of lading for each shipment were prepared by plaintiff's authorized agent at Columbus, Ga., who placed therein the freight rate from said Bull Creek, Ga., to Birmingham, Ala. That the attached bill of lading, marked "Exhibit A" is a true and correct copy of the bills of lading issued by the plaintiff's agent, except that part as to name, date, car number and weights, for each of said shipments. Plaintiff's agent at Columbus, Ga., made a rate of 52 1/2 cents per ton on said shipments in the year 1906. That this was done by plaintiff's agent upon the complaint made by the Columbus Concrete Supply Company in the said year to plaintiff's agent that it could not compete on business from its sand pit at Bull Creek, Ga., on the Seaboard Air Line to Birmingham Ala., unless the Columbus Concrete Supply Company was given the same rate between said points as the plaintiff was charging for shipments from Bull Creek, Ga., on the Central of Georgia Railway, a station on plaintiff's line, adjacent to the station of the same name on the Seaboard Air Line Railway, from which shipments were made, which said rate was 52 1/2 cents per ton. That the Columbus Concrete Supply Company, acting in good faith upon the rate of 52 1/2 cents per ton, named to it by plaintiff's agent and charged by plaintiff's agent at Columbus, Ga., sold to defendant said cars of sand based on said freight rate and a fair profit, the freight charges to be paid by defendant, and deducted in its settlement from amount due Columbus Concrete Supply Company, the said Columbus Concrete Supply Company guaranteeing the said rate to the defendant. That defendant made its contracts for sale of said sand, which was sold to numerous customers, at a price based upon the price paid the Columbus Concrete Supply Company, and the freight on said sand, with a fair profit, and said sand was sold to defendant's customers at a profit greatly less than 27 1/2 cents, the difference in rate now sought to be charged against defendant by plaintiff. That at this time defendant is without any recourse upon the said Columbus Concrete Supply Company, said company having ceased to exist, and that any amount or amounts which defendant might be forced to pay, on account of said cars of sand, by plaintiff, would be a loss to defendant. That no notice of any claim or error in the fixing, or charging of said rate of 52 1/2 cents per ton has ever been made by plaintiff to defendant, other than that contained in a letter dated May 5, 1911, signed by the division counsel of plaintiff, mailed to defendant, stating that plaintiff had a claim against defendant for the amount sued for, and demanding payment, said demand by plaintiff being made long after defendant had made final settlement with its customers for said sand sold them at a price based upon the freight rate furnished by plaintiff's agent. It is further agreed that from Bull Creek, Ga., the station located on the Seaboard Air Line Railway, there was no lawful through rate on sand to Birmingham Ala. That from Bull Creek, Ga., the station located on the Central of Georgia Railway, there was a lawful rate on sand of 52 1/2 cents per ton to Birmingham, Ala., and that there was a lawful rate on sand from Columbus, Ga., to Birmingham, Ala., of 80 cents per ton. That if upon the foregoing statement of facts plaintiff is entitled to recover, it is entitled to recover the sum of $682.38, with interest thereon from May 2, 1910.

John London and Henry Fitts, both of Birmingham, for appellant.

Vassar L. Allen and Thomas J. Wingfield, both of Birmingham, for appellee.

THOMAS J.

This suit is on the common counts and on a special count setting out the facts, and is brought by the appellant, the Central of Georgia Railway Company, as a common carrier engaged in interstate commerce, to recover of defendant, as the consignee of several car load shipments of sand, the difference in the freight on the same, amounting in the aggregate to $682.38, between 52 1/2 cents per ton, the rate of freight named in the several bills of lading on which the sand was shipped, and 80 cents per ton, the then existing lawful rate, from Columbus, Ga., where plaintiff received the shipments from the Seaboard Air Line Railway Company, to Birmingham, Ala., the point of destination, where plaintiff delivered the several shipments to defendant upon payment by the latter in each instance of only the freight named in the bill of lading, to wit, 52 1/2 cents per ton. To the action, the defendant interposed a special plea (quoting) "in short by consent of all matters that may be specially pleaded, and especially all matters in estoppel." The case was tried by the court without the intervention of a jury and on an agreed statement of the facts, which are brief, and will be set out in the report of the case, except the bill of lading, attached thereto as an exhibit, which, being in the usual form, it is unnecessary to set out. From the judgment rendered in favor of the defendant, the plaintiff appeals, assigning as the only error the rendition of this judgment, and insisting that, under the law applicable to the agreed facts, the judgment should have been in its favor instead of in defendant's favor.

In the agreed statement of facts it is admitted by the defendant, among other things, that 80 cents per ton, and not 52 1/2 cents per ton, as named in the bills of lading, was the lawful rate, which we take to mean the rate filed with and approved by the Interstate Commerce Commission and established as the existing rate at the time of the shipments in question. U.S.Comp.Stat. 1901, p. 3155; U.S.Comp.Stat.Supp. 1909, p. 1153; U.S.Comp.Stat.Supp. 1911, p. 1309.

In general, the carrier has a right to look either to the consignor, with whom the contract of shipment is made, or, as here, to the consignee, to whom the goods are actually delivered, for the freight thereon; and the liability of such consignee is not relieved by the fact that the carrier may have waived or lost its lien on the goods themselves, and the consequent right to subject them to the payment of the freight, by having delivered them without first having...