Emerson v. Central of Georgia Ry. Co.

• Decision Date: 18 May 1916
• Docket Number: 3 Div. 238
• Citation: 72 So. 120,196 Ala. 280
• Parties: EMERSON v. CENTRAL OF GEORGIA RY. CO.
• Court: Alabama Supreme Court

72 So. 120

196 Ala. 280

EMERSON v. CENTRAL OF GEORGIA RY. CO.

3 Div. 238

Supreme Court of Alabama

May 18, 1916

Appeal from City Court of Montgomery; C.P. McIntyre, Judge.

Action by the Central of Georgia Railway Company against G.F Emerson. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under Act April 18 1911, p. 449, § 6. Affirmed.

Hill Hill, Whiting & Stern, of Montgomery, for appellant.

Steiner, Crum & Weil, and W.M. Blakey, all of Montgomery, for appellee.

THOMAS J.

In accordance with the agreement of parties the bill of exceptions on file is hereby established as the bill of exceptions in this cause.

Suit was brought by appellee, Central of Georgia Railway Company, against appellant, as the consignee of a horse shipped over appellee's road from Clayton to Montgomery, Ala., for an undercharge of freight.

One Smith, of Clayton, bought a horse from Emerson under a sales contract guaranteeing it "to be sound." This purchaser at Clayton discovered a defect in the horse's eyes, and subsequently reshipped the animal to Emerson over appellee's road. When this return shipment was made a bill of lading valuing the horse at $300 was issued by appellee and delivered to Smith as consignor, and appellant was named therein as consignee. On its arrival at the point of destination appellant paid $11.60 freight charges and received the horse. Appellee's agent at Clayton testified that he informed the shipper the true rate on such valuation, that the valuation of $300 was fixed by the shipper's agent, and that at his request the shipment was made collect at Montgomery. The original bill of lading, having been lost before the trial, was not in evidence.

At the time of this shipment and delivery appellee's tariff, a copy of which was on file with the Alabama Railroad Commission as required by law, showed the freight charge on such an animal between said shipping points to be $11.60 on a valuation of $100, and to be $34.80 on a valuation of $300. The undercharge error in freight was discovered by appellee about a year later, and demand on appellant for the $23.20 balance was made, and refused.

There was evidence that Smith and Emerson had had negotiations as to the return of the horse under the terms of its sale, but it is not averred nor proven that appellee was informed of the conditions of its reshipment, or who the real owner was, nor that appellee was so informed at the time either of the delivery or of the demand for the payment of the freight undercharge.

The pleas of the defendant were, in short, by consent, the general issue, and any matter that may be specially pleaded.

A general statement of the consignee's prima facie liability is found in 2 Hutchinson, Carriers (3d Ed.) § 807, as follows:

"The consignee is presumptively the owner of the goods, and is therefore prima facie liable for the freight, and, if he accepts them, the law implies a promise on his part to pay it; and such acceptance is evidence from which a jury must infer that he is the owner, and therefore bound by an implied contract to pay the freight upon them, unless such inference would be inconsistent with other facts of the case or with proof of ownership in another; and, although he be not named as consignee in the bill of lading, if he be the party for whom the goods were intended, he becomes liable for the freight as soon as they are accepted by him. But, if he is not the owner, he does not become liable from the mere fact of his being consignee, and no contract to pay the freight can be implied unless he accepts the goods; nor even then, where the consignee is known to be merely the agent of the shipper, will the law imply a promise on the part of the agent to pay the freight, though from all the circumstances of the case the jury may find that there was an implied promise. ***

"But the mere acceptance and removal of the goods by the consignee, with knowledge that the carrier is giving up for his benefit a lien upon the goods for a stated amount, does not create an obligation on the part of the consignee to pay charges beyond the amount stated."

In Central of Georgia Railway Co. v. Southern Ferro Concrete Co., 68 So. 981, it was held that a carrier's right to collect freight undercharges on interstated shipments was properly left to the court having jurisdiction to declare in each case whether the consignor or the consignee is legally liable for the undercharge. From the pleading and the proof in that case it will be noted that the case is distinguishable from the instant case, in that it was there alleged and proven that "when the claim was made for the undercharge of freight," plaintiff was informed of the true contract between the defendant and the owners and shippers of the sand, "who were obligated to pay" the freights, and "who were and are entirely solvent."

The general rule is that consignor, consignee, and carrier are alike charged with notice of the lawful rate. U. Pac. R Co. v. Am. Smel. & R. Co., 202 F. 720, 121 C.C.A. 182; L. & N.R.R. Co. v. Maxwell, 237 U.S. 94, 35 Sup.Ct. 494, 59 L.Ed. 853, L.R.A.1915E, 665; Penn. R.R. Co. v. Crutchfield, 55 Pa.Super Ct. 346l N.Y., N.H. & H.R.R. v. York Co., 215 Mass....