Griffin Grocery Co. v. Pennsylvania R. Co.

• Decision Date: 13 March 1956
• Docket Number: No. 1,No. 36030,36030,1
• Citation: 93 Ga.App. 546,92 S.E.2d 254
• Parties: GRIFFIN GROCERY CO. v. PENNSYLVANIA RAILROAD CO
• Court: Georgia Court of Appeals

Page 254

92 S.E.2d 254

93 Ga.App. 546

GRIFFIN GROCERY CO. v. PENNSYLVANIA RAILROAD CO.

No. 36030.

Court of Appeals of Georgia, Division No. 1.

March 13, 1956.

Syllabus by the Court.

Where a seller of goods consigns them to itself by order notify bill of lading issued by a railroad, and the bill of lading states that the freight has been prepaid, and the 'order notify' purchaser pays a draft drawn by the seller-consignor attached to the bill of lading, including the cost of the goods and the amount of the published freight rate, the railroad is estopped to collect the freight charges from the ultimate order notify purchaser where the railroad's action in representing that the freight had been prepaid was intentionally done by reason of extension of credit to the seller-consignor by placing it on the railroad's 'credit list.'

The Pennsylvania Railroad Company sued Griffin Grocery Company to recover freight charges and tax on a carload of soybean meal consigned by Louisville Soy Products Corporation to itself for notification to Griffin Grocery Company. The petition alleged that the freight charges had not been paid by the consignor or by anyone on its behalf and that the consignor is insolvent and that it is in receivership and that its assets were insufficient to pay the charges. The defendant answered contending that the plaintiff is estopped to demand and collect the freight charges by reason of the following facts: (1) that the shipper, the Louisville Soy Products Corporation, on or about March 27, 1952, delivered the shipment to the plaintiff at Louisville, Kentucky, consigned to the shipper 'charges prepaid', at Fort Valley, Georgia, order notify Griffin Grocery Company, and the plaintiff accepted the shipment and issued its uniform order bill of lading for said order notify shipment marked freight 'prepaid', (2) that the defendant was induced by the express representation that the freight charges had been prepaid to pay the order notify draft to the shipper which draft the plaintiff knew or by the exercise of ordinary care could have known, included freight charges; (3) that the defendant, relying on representation that the freight charges had been prepaid, accepted the shipment in good faith; (4) that the defendant did not expressly or impliedly agree to pay the freight charges; (5) that the defendant had no knowledge that the plaintiff had failed to collect the freight until about February 17, 1954; (6) that the shipper was on the plaintiff's 'credit' list and plaintiff accepted the shipment as a prepaid shipment and extended credit to the shipper for the freight charges. A stipulation of facts supported the defendant's allegations of facts. The court trying the case without the intervention of a jury found for the plaintiff railroad and the defendant excepted.

Beck, Goddard & Smalley, Griffin, for plaintiff in error.

Cumming & Cumming, Griffin, for defendant in error.

FELTON, Chief Judge.

While there is authority in cases from Federal district courts and circuit courts of appeal to support the trial court's judgment, there has not been a ruling by the Supreme Court of the United States on facts analogous to those here involved and there are several, though minority, rulings, which seem to us to be sound and correct, which in our opinion demand a reversal of the trial court's judgment. The cases which are contrary to our views seem to us to be based on a misconception of the intent and purpose of the Interstate Commerce Act. 49 U.S.C.A. § 3(2). This section states in part: 'No carrier by railroad and no express company subject to the provisions of this part shall deliver or relinquish possession at destination of any freight or express shipment transported by it until all tariff rates and charges thereon have been paid, except under such rules and regulations as the Commission may from time to time prescribe to govern the settlement of all such rates and charges and to prevent unjust discrimination. * * *' The purpose of the act is to prevent unjust discrimination. The rationale of the United States Supreme Court decisions in Pittsburgh, C., C. & St. L. R. Co. v. Fink, 250 U.S. 577, 40 S.Ct. 27, 63 L.Ed. 1151 and New York Cent. & H. R. R. Co. v. York & Whitney Co., 256 U.S. 406, 41 S.Ct. 509, 65 L.Ed. 1016 is that published rates are matters of common knowledge which are accessible to all and by which all are bound and that no mistake or estoppel will excuse the failure to collect full published charges. These two cases involve the collection of additional charges which a lesser charge had been paid by mistake or otherwise. These cases are not authority for the trial judge's judgment in this case. The railroad cites numerous cases in support of its contentions. A great many of them involve the collection of additional charges. Some of them recite that they are not in equity. Assuming that it makes any difference whether the case is in equity or not the equitable defense of estoppel is available in this State in a law court to the extent that it is necessary to defeat a plaintiff's claim. The railroad cites: Pittsburgh, C., C. & St. L. R. Co. v. Fink, 250 U.S. 577, 40 S.Ct. 27, 63 L.Ed. 1151; Western & A. R. Co. v. Legg, 32 Ga.App. 368, 123 S.E. 31; Jelks v. Philadelphia & R. R. Co., 14...