Hunter v. St. Louis & San Francisco Railroad Co.

• Decision Date: 08 October 1912
• Citation: 150 S.W. 733,167 Mo.App. 624
• Parties: A. B. HUNTER, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

150 S.W. 733

167 Mo.App. 624

A. B. HUNTER, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

October 8, 1912

Appeal from New Madrid Circuit Court.--Hon. Henry C. Riley, Judge.

AFFIRMED.

STATEMENT.--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, Missouri, and inquired of defendant's agent there the freight rate on corn from Lilbourn, Missouri, and Marston, Missouri, to Birmingham, Alabama. Marston and Lilbourn were six miles apart and were separate stations in charge of different agents. The agent told him that he did not know 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 fourteen 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 fourteen 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 fourteen cent rate thus quoted. When the corn arrived at destination, the defendant exacted, and plaintiff paid under protest, twenty-four cents per 100 pounds as the freight charge. The excess so exacted over the rate quoted by the Lilbourn agent was $ 309.32, which the plaintiff sued for and recovered herein.

The evidence on behalf of defendant tended to prove that in order, under the Intersate Commerce Act, to establish the twenty-four-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 contemplated 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 Marston 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, Missouri, and Marston, Missouri, to Birmingham, Alabama, 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, Missouri, had been furnished to defendant's depot and freight agent at Lilbourn, Missouri, by the defendant, and the same were then on file with said agent at his office at the depot of 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 though they were both mistaken in the freight rates and defendant's agent at Lilbourn quoted the plaintiff a rate of fourteen cents per hundredweight instead of twenty-four cents per hundredweight as fixed by said tariff, if in truth and in fact the said rate was twenty-four cents per hundredweight, as fixed by said tariff; and in that case the agent of defendant at Birmingham, Alabama, was authorized, and it became his duty to collect at Birmingham, Alabama, the lawful rate of twenty-four cents per hundredweight, as freight on the shipment of plaintiff's corn between Lilbourn and Marston, Missouri, and Birmingham, Alabama; and this is so, even though the court should further find from the evidence that copies of said printed schedules for the use of the public had not been posted and were not posted at the time plaintiff made his agreement with defendant's said agent, or at the time of shipment, in two public and conspicuous places in its depot where passengers and freight were respectively received at Lilbourn, Missouri, for transportation, in such form that they were thus accessible to the public."

The last is sufficiently like the preceding one to make its reproduction here unnecessary.

Judgment affirmed.

W. F. Evans, Moses Whybark and A. P. Stewart for appellant.

(1) Interstate freight rates are established when a schedule thereof is filed by a carrier with the Interstate Commerce Commission, and copies are furnished by the railway company to its freight offices, although such rates may not be "posted" as required by Sec. 6 of the Act to Regulate Commerce. Such rates, when regularly established, are no longer the rates imposed by the carrier, but the rates imposed by the law. Railroad v. Oil Mill, 204 U.S. 449; Grain Co. v. Railroads, 12 I. C. C. Rep. 418. (2) A common carrier may exact the regular rate for an interstate shipment, although a lower rate was quoted by the carrier to the shipper who shipped under the lower rate so quoted. Gerber v. Railway, 63 Mo.App. 145; Railroad v. Hefley, 158 U.S. 98; Railroad v. Mugg, 202 U.S. 242; Railroad v. Cotton Oil Co., 204 U.S. 426; Railroad v. Oil Mill, 204 U.S. 499; Haurigan v. Railroad, 80 Neb. 132; 16 Am. & Eng. Ann. Cas. 450; Railroad v. Hubbell, 54 Kan. 232, 5 I. C. C. Rep. 241; Railroad v. Bundick, 94 Ga. 775, 5 I. C. C. Rep. 289; Grain Co. v. Railroad, 12 I. C. C. Rep. 418; Ohio I. & M. Co. v. Railroad, 18 I. C. C. Rep. 299; Railroad v. Dumas, 43 S.W. 609; Sutton v. Railroad, 140 S.W. 76. (3) The failure on the part of the shipper to pay, or of the carrier to collect the full freight charges, based upon the lawfully published rate for the particular movement between two given points, constitutes a breach of the law, and will subject either one or the other, and sometimes both, to its penalties. Sec. 10, Act to Regulate Commerce, as amended March 2, 1889, 25 U.S. Stat. at Large, 855; Grain Co. v. Railroads, 12 I. C. C. Rep. 422.

Brown & Gallivan for respondent.

(1) Respondent contends that the failure to post the rate or to furnish the tariff upon inquiry was a violation of the law and that by reason of said violation of the law he had no notice and did not know the freight rates on corn from Lilbourn or Marston to Birmingham, Ala. (2) That to bind a shipper the appellant would have to have the rates in the office where it could be inspected by the shipper upon application to the agent. And that, while this tariff was in the possession of the agent, for the purpose of this lawsuit, his not knowing what the tariff was and saying to the respondent that he did not have the tariff, was the same as the tariff not being in his possession. Railroad v. Sloop, 200 Mo. 198. (3) Respondent says that the evidence shows that the rate at Marston was not posted nor in the office at all.

CAULFIELD, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

CAULFIELD, J. (after stating the facts).

--I. The demurrer to the evidence was properly overruled. Plaintiff made a...