Chicago, M. & St. P. Ry. Co. v. Frye & Co.

• Decision Date: 16 December 1919
• Docket Number: 15018.
• Citation: 186 P. 668,109 Wash. 68
• Court: Washington Supreme Court
• Parties: CHICAGO, M. & ST. P. RY. CO. v. FRYE & CO. et al.

186 P. 668

109 Wash. 68

CHICAGO, M. & ST. P. RY. CO. v. FRYE & CO. et al.

No. 15018.

Supreme Court of Washington, En Banc.

December 16, 1919

Appeal from Superior Court, King County; John S. Jurey, Judge.

Action by the Chicago, Milwaukee & St. Paul Railway Company, against Frye & Co., a corporation, and another. Judgment for defendants, and both parties appeal. Affirmed.

George W. Korte and C. H. Hanford, both of Seattle for appellant.

Higgins & Hughes, of Seattle (Hyman Zettler, of Seattle, of counsel) for respondents.

TOLMAN J.

The plaintiff sues to recover money alleged to be due for freight on shipments of hogs, cattle, and corn accompanying for feeding purposes, and switching charges accruing during the years 1909 to 1914, both inclusive. Both parties have appealed from the judgment below, and to avoid confusion will be referred to as plaintiff and defendant respectively. It was announced on oral argument here that the matters in dispute as to the freight on corn which accompanied the shipments of stock for feeding purposes had been adjusted, and therefore that matter will not be further considered or referred to herein.

The questions now to be determined are:

(1) What was the legal rate to charge as freight on the shipments of hogs?

(2) What was the legal rate to be charged as freight on the shipments of cattle?

(3) Is the plaintiff entitled to charge and collect switching charges, or is that a part of the service covered by the through rate?

(4) Do the transactions shown constitute a mutual, open, and current account with reciprocal demands between the parties, as defined in our statute, Rem. Code, § 166?

(5) Is the statute of limitations applicable, and, if so, to what extent?

1. To determine what was the legal rate to be charged as freight on the shipments of hogs, the tariffs established by the plaintiff and filed with the Interstate Commerce Commission must be considered in the light of the transactions as shown by the evidence. It appears that defendant and its predecessors had been for a number of years engaged in the operation of a slaughtering and packing business in the city of Seattle, and was a large shipper of live stock from points where produced to its plant, and prior to the transactions herein involved it had purchased such live stock in territory not entered by plaintiff's road, and shipped by other lines. The plaintiff, having opened up a large territory in the Dakotas, and by its through line made shipments therefrom to Seattle feasible, sought the defendant's business, and to procure it established and duly filed certain tariffs among others a tariff for the shipment of hogs, which provided for concentration points in South Dakota, for through rates from all loading points east of and in the same zone as the concentration points to Seattle, of $170 for each single-deck car, with the privilege of unloading, feeding, and concentrating at such concentration points, and reloading in double-deck cars in the ratio of three single-deck cars to two double-deck cars, the rate on the double-deck cars to be for each two three times the rate on one single-deck car, and also established by the same means local rates from the loading places to the concentration points.

The practical operations, as found by the trial court, and as established by the evidence, are substantially these: Defendant placed buyers at the concentration points, who, by telephone or letter, communicated with producers at the various loading stations, and induced them to ship their hogs in single-deck cars billed to defendant in Seattle, but with directions to unload and feed at one of the concentration points, the shipper signing a live stock contract. When the car so billed reached the concentration point, it was unloaded in plaintiff's stockyards, and its contents commingled with the hogs arriving from other loading points, so that the identity of each initial shipment was then lost. After feeding and resting, and as sufficient hogs were assembled, they were reloaded in double-deck cars and carried through in trainload lots to Seattle. These double-deck cars were each loaded to the required weight, each two equal to the load of three single-deck cars, but not overloaded, from the common pen, without regard to the number of single-deck cars in which the hogs had actually arrived, and were sent on to Seattle without rebilling, on the waybills previously issued on the single-deck cars at the station where loaded, each two double-deck cars carrying with them waybills for three single-deck cars, and earning the freight rate of such three single-deck cars from the loading point to Seattle.

Because of the partially developed hog industry, it was not always possible to secure full single-deck carloads at the loading points, and in many instances, on account of such underloading and small cars, the actual contents of four or more single-deck cars were put into two double-deck cars at the concentration points, without, in fact, loading such double-deck cars beyond what the tariff called for--i. e., three single-deck carloads in two double-deck cars. This resulted in an excess of single-deck cars over the ratio of three to two at the concentration points, all billed to Seattle, and each billed with the tariff freight rate through to Seattle, but none of which traveled beyond the concentration point, their loads having gone on in the double-deck cars without overloading.

The waybills for these extra cars were sent on to Seattle, presented to the defendant, with a demand for payment of the through rate on each, and, payment being refused, they form the basis for plaintiff's demand on this branch of the case. The defendant in the beginning claimed that nothing whatever was due the plaintiff upon these excess cars, but finally an adjustment was reached by which it was mutually agreed that defendant should pay the local rates from the loading point to the concentration point upon each of these excess cars; but the plaintiff's accounting department repudiated this agreement, and by this action it is sought to establish a construction of the tariff which will require the payment of $170 for each single-deck car billed from any loading point to Seattle notwithstanding that it traveled only to a concentration point and regardless of the ratio in which the contents of such cars were reloaded into double-deck cars at the concentration points.

Experts testified upon each side as to the proper interpretation of the tariff, and after a full consideration of such testimony we are inclined to approve and adopt the view taken by the trial court so clearly expressed in his memorandum opinion, as follows:

'I think upon the whole record the tariffs in

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