Greason v. St. Louis, Iron Mountain & Southern Railway Company

• Decision Date: 07 March 1905
• Citation: 86 S.W. 722,112 Mo.App. 116
• Parties: GREASON et al., Respondents, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

86 S.W. 722

112 Mo.App. 116

GREASON et al., Respondents, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 7, 1905

[Copyrighted Material Omitted]

Appeal from Butler Circuit Court.--Hon. Jas. L. Fort, Judge.

REVERSED.

STATEMENT.

Plaintiffs compose a firm which does business in Poplar Bluff, Missouri on the line of the defendant railroad company. The petition alleged and the evidence proved, that for several years prior to 1902, they had been engaged in shipping lumber, railroad ties and piling over defendant's line. It is stated in the petition that railroad switch ties are covered by the general definition of lumber and included among other articles mentioned in the defendant's tariff sheets as hauled for the freight rate on lumber. These matters of inducement having been stated, the plaintiffs averred that prior to January 20, 1902, they had an order for a large lot of railroad switch ties to be delivered at Peoria, Illinois that before accepting the order, plaintiff wrote to the general freight agent of the defendant company asking a rate "on said commodity" (switch ties) to Peoria; that the agent refused to quote a through rate, but agreed by a letter dated January 20, 1902, to protect a rate of ten cents a hundredweight from Poplar Bluff and Harviell, Missouri, to East St. Louis, Illinois, on ties destined to Peoria; that relying on said promise, plaintiffs, between February 11 1902, and May 20, next ensuing, shipped over defendant's road from Poplar Bluff and Harviell, 19 carloads of switch ties aggregating in weight 623,600 pounds, billed to Peoria; that the defendant received the ties at the points of shipment and carried them to East St. Louis, where it delivered them to a connecting carrier, the Chicago & Alton Railway Company; that the defendant collected its charges from said connecting carrier, which in turn collected them from the consignees of the ties, who charged them against plaintiffs' account; that the defendant. instead of keeping its agreement to carry the ties to East St. Louis for ten cents a hundredweight, charged and collected a higher rate, to-wit: thirteen and one-quarter to fifteen cents a hundredweight, which higher rate the plaintiffs were compelled to pay; that afterwards plaintiffs demanded the excess of freight charged ($ 250) which defendant refused to pay; wherefore judgment was prayed for said sum. The answer was a general denial. The letter mentioned in the petition as containing the defendant's agreement, on which this action is founded, reads as follows:

"St. Louis, Mo., January 20, 1902.

"A. H. Greason & Co.,

"Poplar Bluff, Mo.

"Gentlemen:

"Referring to your favor of the 11th inst., this is to advise you that we have taken matter of rate on lumber from Poplar Bluff, Missouri, to Peoria, Ill., up with the C., P. & St. L., who advise us they will write you direct regarding the rate from East St. Louis. We will protect 10 cents per hundred pounds, East St. Louis, when destined Peoria, Ill.

"Yours truly,

"J. E. LINCOLN, T. M."

The petition says the above letter was received in answer to an inquiry addressed by the plaintiffs to the defendant's general freight agent for a rate on switch ties from Poplar Bluff and Harviell, Missouri, to Peoria, Illinois. The words of the petition are that plaintiffs asked the rate on "said commodity;" but preceding averments show that "commodity" meant railroad switch ties. The testimony of the assistant general freight agent of the company was that the letter which gives a rate for hauling lumber was written in answer to one received from the plaintiffs, January 11, 1902, asking for the rate on lumber from Poplar Bluff, Missouri, to Peoria, Illinois; and it is not denied that plaintiffs' inquiry was regarding the lumber rate. The articles actually shipped were hewn switch ties. The defendant company charged the plaintiffs more than ten cents per hundredweight for transporting the ties from the points of shipment to East St. Louis. The essential dispute is as to whether the letter from defendant's freight agent, quoting a rate for hauling lumber, constituted an agreement on the part of the defendant to carry hewn switch ties at ten cents a hundredweight--that is, whether hewn ties are lumber within the meaning of the defendant's agreement to transport lumber for ten cents a hundredweight. To maintain their position that switch ties are lumber the plaintiffs, over the defendant's objection, introduced the definition of the word "lumber" given in the Universal Dictionary, to-wit: "Lumber (Noun)--Marketable timber. Lumber (Verb)--To cut forest timber and prepare it for market." An exception was saved to the admission of that evidence. Plaintiff next introduced, over the objection of the defendant, a freight tariff sheet issued by defendant, effective February 15, 1900:

"Lumber rates will apply upon lumber, except walnut, butternut, cherry and woods of value, and as otherwise provided, and also on the following articles, in straight or mixed C. L., minimum weight 30,000 pound's per car, except when car is loaded to full visible physical capacity, when actual weights will apply, subject to a minimum of 24,000 pounds."

(Here follows a long list of articles, such as:

Base boards,

Box lumber or shooks, including scarfed berry box material, in bundles or racks,

Carpenters' mouldings,

Fence posts,

Handles, in the rough,

Lath, pine,

Lumber, including ceiling, flooring (except wood carpet) wainscoting,

Piles,

Telegraph and Telephone poles.)

"Articles taking higher than lumber rates--walnut, butternut, and cherry lumber and walnut logs (squared), C. L. 3 cents above lumber rates.

"Mahogany, holly and woods of value--see classification.

"All other woods, lumber rates.

"The following articles, when loaded in straight or mixed C. L. will take 1 cent per 100 pounds above the lumber rates, subject to the minimum weights governing shipments of lumber.

"When loaded with articles taking lumber rates they will take 3 cents over the lumber rates on the actual weight of such articles, provided they are specified on shipping tickets; if not so specified the regular L. C. L. rating will apply. The total charges on the entire carload, however, are not to exceed the charges on a straight or mixed C. L. of articles taking one (1) cent per hundred pounds above lumber rates."

(Here follows a long list of articles such as:

Angle heads,

Balusters,

Carpenters' mouldings,

Door jambs,

Porch Newels,

Porch columns,

Stair work (newels, risers, treads, railings, balusters, and post ornaments), K. D.)

"The basis for rates on inside finish material will not apply on articles named when polished or varnished.

"Note.--The foregoing rates will not apply on articles named when manufactured from mahogany, rosewood, lignum vitae or other valuable foreign woods.

"The following articles, when loaded in straight or mixed C. L. will take 5 cents per 100 lbs. above the lumber rates:

Ax handles, turned, not further finished.

Handle butts, turned, not otherwise finished,

Lasts, in rough,

Sleigh wood, turned, not otherwise finished,

Shapes for vehicles, dressed.

Shapes for agricultural implements, dressed.

"Pilings, logs, telegraph or telephone poles and other long timbers requiring more than one car, will be charged for at a minimum weight of 20,000 pounds for every car used."

It was not shown whether the tariff sheet was published in compliance with the statutes of the State of Missouri or with the Interstate Commerce Act.

Plaintiffs next introduced in evidence, over the objection of the defendant, the opinion of the Interstate Commerce Commission in the case of Reynolds v. Ry. Co., 1 I. C. C. 393. This case was decided by the Interstate Commerce Commission in 1888. The effect of the decision is that, to conform to the spirit of the Interstate Commerce Act, ties, sawed and hewn, should be put in the same classification as lumber in fixing the rate for transporting them. The defendant then put in evidence the deposition of E. B. Lane, Assistant General Freight Agent of the defendant company, whose testimony, in substance, was that the defendant did not charge interstate commerce rates on shipments of freight from points in Missouri to East St. Louis, Illinois, but charged the local rates from the points of shipment to St. Louis, conforming in fixing the local rates, to the statutes of Missouri and the orders of the State Board of Railroad Commissioners; that the rate on lumber from Poplar Bluff to East St. Louis was ten cents a hundredweight; that sawed railroad ties were classed as lumber, but hewn ties were not and the charge for hauling hewn ties is three and one-quarter cents a hundredweight more than for hauling lumber; that prior to 1903 the defendant's tariff provided that switch ties should take the statutory rate, which was thirteen and one-quarter cents a hundredweight; that hewn ties had never been classed as lumber by defendant nor shipped at lumber rates, but defendant had always had a special rate for them; that the tariff sheet above mentioned, where it used the words "all other woods, lumber rates," after the words "mahogany, holly and woods of value (see classification)," meant all other woods shipped in the shape of timber, but did not mean switch ties, as such ties are not lumber; that the State of Missouri, through its Board of Railroad Commissioners, prescribed what should be charged for shipments of railroad ties and the statutes of the State classified railroad ties; that the rate prescribed by the Board of Commissioners, under the statutes, for hauling hewn ties differed from the rate prescribed for hauling lumber.

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