Hunter v. St. Louis & S. F. R. Co.

• Citation: 117 Mo. App. 624,150 S.W. 733
• Court: Court of Appeal of Missouri (US)
• Decision Date: 08 October 1912
• Parties: HUNTER v. ST. LOUIS & S. F. R. CO.

150 S.W. 733

117 Mo. A. 624

HUNTER v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

October 8, 1912.

1. CARRIERS (§ 202)—OVERCHARGE—ACTION — PRIMA FACIE CASE — INTERSTATE SHIPMENT.

Though the parties to an interstate transportation contract cannot, by agreement, mistake, or otherwise, fix a rate different from any established under the Interstate Commerce Act, nevertheless proof, in an action for overcharge, that a rate less than that charged by the carrier at destination was contracted for and inserted by the carrier's agent in the bill of lading, and that plaintiff paid the increased rate at destination under protest, was sufficient to establish a prima facie case, the burden then shifting to the carrier to show that the higher rate had been established in accordance with the requirements of the Interstate Commerce Act.

2. CARRIERS (§ 309)INTERSTATE COMMERCE—RATES—ESTABLISHMENT—PUBLICATION.

Under the Interstate Commerce Act as it stood in 1908 (Act Feb. 4, 1887. c. 104, § 6, 24 Stat. 380 [U. S. Comp. St. 1901, p. 3156,

as amended by Act June 29, 1906, c. 3591, § 2, 34 Stat. 586 [U. S. Comp. St. Supp. 1911, p. 1289]), providing for the establishment of interstate freight rates, the carrier is bound, not only to file the schedule of rates with the Interstate Commerce Commission, but to publish the same; the publication consisting in promulgating and distributing the tariff in printed form in the offices of its station agents, preparatory to putting it into effect, though such publication does not necessarily require posting in such offices.

3. CARRIERS (§ 47) — STATION AGENT — AUTHORITY.

A local station agent's authority extends only to the control of the carrier's business at his own station.

4. CARRIERS (§ 202)—INTERSTATE COMMERCE —RATES—PUBLICATION.

Under the Interstate Commerce Act as it stood in 1908 (Act Feb. 4 1887, c. 104, § 6, 24 Stat. 380 [U. S. Comp. St. 1901, p. 3156], as amended by Act June 29, 1906, c. 3591, § 2, 34 Stat. 586 [U. S. Comp. St. Supp. 1911, p. 1289]), providing that a carrier, in order to establish an interstate rate, must file the schedule with the Interstate Commerce Commission and publish the same, the carrier, to prove the establishment of an interstate rate for a particular station, is bound to prove that the printed schedule containing such rate had been furnished to that station, or to the agent in charge thereof; and proof that a printed copy of the schedule containing the rate was furnished to the carrier's depot and freight agent at another station, some six miles from the station in question, was insufficient

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by A. B. Hunter against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Suit to recover $309.32 exacted from plaintiff at the destination of shipments in excess of the freight rate quoted by defendant's station agent and stated in the bills of ,lading. The trial was to the court, and the finding and judgment for plaintiff. Defendant appealed.

The evidence adduced on behalf of plaintiff tended to prove the following state of facts: In December, 1908, plaintiff went to the station of defendant at Lilbourn, Mo., and inquired of defendant's agent there the freight rate on corn from Lilbourn, Mo., and Marston, Mo., to Birmingham, Ala. Marston and Lilbourn were six miles apart, and were separate stations, in charge of different agents. The agent told him that he did not knew what the rate was; looked for it, and said he could not find it; that he did not have that rate in his office, but would wire and get it. A day or two afterwards the agent told plaintiff that the rate was 14 cents per 100 pounds, the same as it was to New Orleans. Thereupon plaintiff sold and shipped three cars of corn from Lilbourn to Birmingham, and the agent inserted the rate of 14 cents per 100 pounds in the bills of lading, and at the same time he sold and shipped two cars of corn from Marston to Birmingham, and, the agent at Marston inserted the same rate in the bills of lading. He sold the corn, delivered at Birmingham, at a price based on the 14-cent rate thus quoted. When the corn arrived at destination the defendant exacted, and plaintiff paid under protest, 24 cents per 100 pounds as the freight charge. The excess so exacted over the rate quoted by the Lilbourn agent was 8309.32, which the plaintiff sued for and recovered herein. The evidence on behalf of defendant tended to prove that in order, under the Interstate Commerce Act, to establish the 24-cent rate from Lilbourn to Birmingham and from Marston to Birmingham, it had filed a schedule showing that rate with the Interstate Commerce Commission, and had furnished a printed copy to its freight office at Lilbourn; that such printed copy was in the hands of the Lilbourn agent, but he did not know how to find the rate thereon when plaintiff asked for it. The rate he quoted was based on misinformation from another station agent. Defendant did not post copies of said schedule in two conspicuous places in its station at Lilbourn for the information of the public, as contempated by said act, but instead posted a notice stating that such schedule was on file in the office and could be inspected on application to the agent. There was no evidence that the defendant had furnished a copy of said schedule to its freight office at Lilbourn, or that any copies thereof, or notice referring thereto, were posted in the station at Marston.

The defendant offered and the court refused to give, three instructions; the defendant duly excepting. The first was a demurrer to the evidence, offered at the close of all the evidence. The next was as follows: "The court declares the law to be that if it finds from the evidence that the freight rates on the shipment of corn by railroad from Lilbourn, Mo., and Marston, Mo., to Birmingham, Ala., at the time plaintiff made his shipment, was provided for by Southeastern Tariff No. 2, Interstate Commerce Commission No. 6, issued July 25, 1908, and said schedule of rates had been printed and filed with the Interstate Commerce Commission on the 25th day of July, 1908, and became effective on September 1, 1908, and were in effect until March 1, 1909, and printed copies thereof, after the filing of the same and before the shipment by plaintiff of the corn in question, or before any arrangement was made by him for the shipping thereof, with defendant's agent at Lilbourn, Mo., had been furnished to defendant's depot and freight agent at Lilbourn, Mo., by the defendant, and the same were then on file with said agent at his office at the depot a defendant, then and in that case the rates of freight for the shipment of corn between said stations provided for in said tariff became the rates imposed by law, and could not be changed in any respect or particular by any agreement between the plaintiff and defendant's agent at Lilbourn, even...