L. & N. R. Co. v. Warren Co. Strawberry Grow. Asso.

• Decision Date: 25 November 1924
• Parties: Louisville & Nashville Railroad Company v. Warren County Strawberry Growers' Association.
• Court: Kentucky Court of Appeals

206 Ky. 482

Louisville & Nashville Railroad Company v. Warren County Strawberry Growers' Association.

Court of Appeals of Kentucky.

Decided November 25, 1924.

Appeal from Warren Circuit Court.

RODES & HARLAN, WOODWARD & WARFIELD and ASHBY M. WARREN for appellant.

THOMAS W. THOMAS, THOMAS, THOMAS & LOGAN, C. U. McELROY and O. P. ANDERSON for appellee.

OPINION OF THE COURT BY COMMISSIONER SANDIDGE — Reversing.

This is an appeal by the L. & N. Railroad Company from a judgment of the Warren circuit court in favor of the Warren County Strawberry Growers' Association for $16,000.00 rendered on the verdict of a jury in an action for damages growing out of the shipment by the association of forty carloads of strawberries. There were three shipments of the berries and a separate action was brought for each shipment; but the three were consolidated and heard and tried together. With reference to the first two shipments, consisting of 16 and 10 cars, respectively, by the petitions, appellee pleaded a contract by which appellant agreed to deliver at destination such of the berries as were consigned to New York City within 78 hours and 45 minutes, and such of them as were consigned to Philadelphia, Pa., within 55 hours after departure from Bowling Green. It pleaded the violation of that contract and the damages resulting to it from same. It also pleaded that appellant violated its implied agreement to deliver at its destination within a reasonable time the two shipments of berries and its consequent damages. With reference to the third shipment the petition merely set forth a cause of action for damages consequent upon appellant's violation of its implied agreement to deliver within a reasonable time. Appellant moved to require appellee to paragraph its petition so as to set forth in separate paragraphs the cause of action for the violation of the contract and that for the violation of the implied agreement to deliver within a reasonable time, which motion the trial court overruled. Appellant then moved the court to strike all that portion of the petition relating to the alleged contract to deliver within a specified time, which the court also overruled. Exceptions were noted for appellant. By answer defendant denied that it failed to deliver the berries within a reasonable time. It pleaded that the contract relied upon by appellee which provided that it should deliver the berries in question within a specified time was in violation of the acts of Congress prohibiting discrimination by a carrier in freight rates and service. Appellee by reply pleaded that appellant had on file with the Interstate Commerce Commission its tariffs which fixed the freight rate on strawberries from Bowling Green to Philadelphia and New York, but that such tariffs did not provide the time schedule for delivery of that commodity from the one place to the others, but left open to appellant to fix its own time schedules for such delivery; and that since it undertook at the freight rate specified in its tariffs to do so in contracting to deliver within the specified time appellant did not thereby violate the acts of Congress prohibiting discrimination by carriers. On the issue thus made the case was tried with the result above indicated.

It is contended by appellant that the contract pleaded by appellee by which it agreed to deliver the berries in question to their destination within a specified time is void because prohibited by act of Congress. It is conceded that appellant's tariffs on file with the Interstate Commerce Commission do not contain the schedule of time in which for the rates therein specified that commodity shall be delivered to Philadelphia or New York. By the original act of Congress, that of February 4, 1887, 24 Stat. 379, it was made unlawful to give to any person any undue or unreasonable "preference or advantage" or to subject any one to "any undue or unreasonable prejudice or disadvantage." By that act provision was made for the publication of tariffs showing the rates, charges and classifications with reference to different freight commodities, "and any rules or regulations, which in any wise change or affect or determine any part or the aggregate of such aforesaid rates and fares and charges.'" By the act it was made indispensably necessary that such tariffs be filed with the Interstate Commerce Commission. By the act carriers were forbidden to charge greater or less compensation than that fixed in the tariffs. By act of Congress of February 19, 1903, known as the "Elkins Act," which amended the act of 1887, 32 Statutes 847, c. 708, it is made

"Unlawful for any person, persons, or corporation to offer, grant, or give or to solicit, accept or receive any rebate, concession, or discrimination in respect of the transportation of any property in interstate or foreign commerce by any common carrier subject to said act to regulate commerce and the acts amendatory thereof whereby any such property shall by any device whatever be transported at a less rate than that named in the tariffs published and filed by such carrier, as is required by said act to regulate commerce and the acts amendatory thereof, or whereby any other advantage is given or discrimination is practiced."

In the absence of a contract to deliver within a specified time the carrier impliedly agrees to deliver within a reasonable time or with reasonable dispatch. Such is not the case when the carrier undertakes to deliver within a specified time. The time agreed upon in a contract to deliver within a specified time may or may not be a reasonable time. The fact that the carrier has delivered within a reasonable time would not be a defense for the violation of a contract to deliver within a specified time. Hence, it requires no extensive argument to demonstrate that a carrier contracting to deliver a commodity within a specified time extends to the shipper an advantage...