Central Warehouse Co. v. Chicago RI & P. Ry. Co.

• Decision Date: 08 June 1927
• Docket Number: No. 7627.,7627.
• Citation: 20 F.2d 828
• Parties: CENTRAL WAREHOUSE CO. v. CHICAGO, R. I. & P. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

20 F.2d 828 (1927)

CENTRAL WAREHOUSE CO. v. CHICAGO, R. I. & P. RY. CO.

No. 7627.

Circuit Court of Appeals, Eighth Circuit.

June 8, 1927.

Briggs, Weyl & Briggs, of St. Paul, Minn., for plaintiff in error.

Thomas D. O'Brien, Alexander E. Horn, Edward S. Stringer, and Philip Stringer, all of St. Paul, Minn., for defendant in error.

Before WALTER H. SANBORN and BOOTH, Circuit Judges, and DAVIS, District Judge.

DAVIS, District Judge.

Defendant in error brought suit to recover freight charges, and demurred to the answer of plaintiff in error, which set up the fact that it had accepted the shipment in reliance upon a bill of lading indorsed "prepaid." The demurrer to the answer was sustained, and judgment entered against the Central Warehouse Company for the freight charges. The Central Warehouse Company has sought a review of this judgment by writ of error.

The facts briefly are as follows: Cullen Wholesale Grocery Company, of Omaha, Neb., in May, 1923, shipped to St. Paul, Minn., over the lines of the Union Pacific Railroad and Chicago, Rock Island & Pacific Railroad, a carload of sugar. The shipment moved on an order bill of lading to the order of the shipper, notify Central Warehouse Company at St. Paul. The bill of lading, which was issued by the Union Pacific Railroad, marked by it "prepaid," contained this provision: "The owner or consignee shall pay the freight and average, if any, and all other lawful charges accruing on said property." The car was delivered to the plaintiff in error, Central Warehouse Company, by the Rock Island Railroad, upon surrender of the bill of lading properly indorsed. No freight charges were demanded, and the Central Warehouse Company, acting in reliance upon the "prepaid" indorsement, took the car and disposed of it for the account of the shipper and remitted the proceeds of the sale, less its commission for handling.

It now appears that freight charges were not in fact prepaid, and demand subsequently was made by the railroad company for their payment. Central Warehouse Company refused to pay these charges. The amount of the charges, if any are due, is not in dispute. It also appears that the shipper is insolvent and the railroad company has been unable to collect the charges from it.

By the Elkins Act of February 19, 1903, c. 708, § 1, as amended by the Hepburn Act of June 29, 1906, c. 3591, § 2, it is provided:

"It shall be unlawful for any person * * * or corporation to offer, grant or give, or to solicit, accept or receive any rebate, concession or discrimination in respect to the transportation of any property in interstate or foreign commerce by any common carrier, subject to said act to regulate commerce, and the acts amendatory thereof, whereby any such property shall by any device whatever be transported at a less rate than that named in the tariffs published and filed by such carrier as is required by said act to regulate commerce and the acts amendatory thereof, or whereby any other advantage is given or discrimination is practiced. Every person or corporation, whether carrier or shipper, who shall knowingly offer, grant, or give, or solicit, accept, or receive any such rebates, concessions or discriminations shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than $1,000, nor more than $20,000." Section 8597, Comp. Statutes.

By section 6 of the original Interstate Commerce Act of February 4, 1887, c. 104, as amended by the Hepburn Act of June 29, 1906, c. 3591, § 2, it is provided as follows:

"No carrier, unless otherwise provided by this act, shall engage or participate in the transportation of passengers or property as defined in this act unless the rates, fares and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this act; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection...