E.L. Young Heading Co. v. Payne

• Decision Date: 07 November 1921
• Docket Number: 21909
• Citation: 127 Miss. 48,89 So. 782
• Court: Mississippi Supreme Court
• Parties: E. L. YOUNG HEADING CO. v. PAYNE, Director General of Railroads

89 So. 782

127 Miss. 48

E. L. YOUNG HEADING CO. v. PAYNE, Director General of Railroads

No. 21909

Supreme Court of Mississippi

November 7, 1921

APPEAL from circuit court of Monroe county, HON. C. P. LONG, Judge.

Suit by the E. L. Young Heading Company against John Barton Payne, Director General of Railroads and Agent of the United States. Directed verdict and judgment for the defendant, and the plaintiff appeals. Affirmed.

The appellant sued the appellee as Director General and Agent of the Illinois Central Railroad Company for an amount which appellant alleged represented freight charges unlawfully demanded and collected from the appellant by the appellee on nine carloads of rough sawed heading shipped to appellant from Longview to Aberdeen in this state. There are three counts in the declaration. It is averred in the first count that the freight rate charged and collected by the appellee from the appellant was in excess of the applicable tariff rate of said railroad on file with and approved by the State Railroad Commission, and therefore unreasonable and extortionate. In the second count it is averred that the freight charges demanded and collected by the appellee from the appellant were unreasonable and extortionate, setting out what would have been a reasonable charge as well as the amount charged and collected alleged to have been unreasonable and extortionate. And in the third count it is averred that the freight rate was agreed on and fixed between the appellant and the appellee at four and one-half cents per one hundred pounds, and the same was set out in the freight bills covering the shipments in question as the correct rate, and therefore the appellee was bound by that rate because it was the contract rate. At the conclusion of the testimony the court gave an instruction at the request of appellee directing the jury to return a verdict in its behalf, which was done and judgment entered accordingly, from which the appellant prosecutes this appeal.

Beginning with December 6, 1917, and up to and including February 7 1918, the appellant shipped over said railroad from Longview to Aberdeen six carloads of rough sawed heading for which it paid the appellee as freight four and one-half cents per one hundred pounds. Beginning with March 27, 1918, and including August 14, 1918, the appellant shipped over said road from Longview to Aberdeen three carloads of rough sawed heading on the first of which it paid appellee seven and one-half cents per one hundred pounds, and on the other two cars nine and one-half cents per one hundred pounds. After the first six cars had been shipped on which appellant paid four and one-half cents per one hundred pounds freight, the appellee claiming that an error had been made in the freight rate on said shipments, and that the tariff rate on file with and approved by the State Railroad Commission was seven and one-half cents per one hundred pounds up to and including June 24, 1918, and after that date nine and one-half cents demanded of the appellant that it pay for said shipments the difference between four and one-half cents per one hundred pounds and seven and one-half cents per one hundred pounds which appellant accordingly paid. The testimony shows that for the three cars shipped from March 27, 1918, and including August 14, 1918, the appellant paid on the first car seven and one-half cents per one hundred pounds freight, and on the other two cars nine and one-half cents.

The testimony introduced on behalf of the appellant tended to show that the freight charges demanded and collected by the appellee were unreasonable and extortionate One of the witnesses on behalf of the appellant, who testified that he had had large experience in shipping this class of freight, stated that the charges demanded and collected by the appellee were unreasonable and unfair, and gave reasons for the statement which have a good deal of force, to say the least of it. For instance, it was shown that the rate of rough sawed heading from Aberdeen to Longview over the reverse route on said road was four cents per one hundred pounds from November 1, 1914, to June 24, 1918, and five cents from the latter date until August 5, 1919. And that on rough sawed heading from Starkville to Aberdeen in this state on the Mobile & Ohio Railroad, a distance of forty-two miles, four miles greater than from Longview to Aberdeen over the Illinois Central Railroad, the rate was two and one-half cents per one hundred pounds from April 1, 1911, to June 24, 1918, and three cents from June 25, 1918, to August 5, 1919. And that on the same material from Longview to Starkville in this state, a distance of only seven miles over the Illinois Central Railroad, the rate was four and one-half cents per one hundred pounds from June 6, 1910, to June 24, 1918, and five and one-half cents per one hundred pounds from January 1, 1914, to the same materials from Starkville to Longview over the Illinois Central Railroad, a distance of seven miles, three cents per one hundred pounds from Januray 1, 1914, to June 24, 1918, and four cents from June 25, 1918, to August 5, 1919. These rates of the Illinois Central Railroad Company and of the Mobile & Ohio Railroad Company were shown by certified copies of their tariffs on file with and approved by the State Railroad Commission.

The appellee introduced in evidence a certified copy of the Illinois Central Railroad published freight tariff on file with and approved by the Railroad Commission on certain materials named therein from Longview to Aberdeen which is in the following language, leaving out the formal parts:

"Bolts, heading, carload, from Longview, Miss., to Aberdeen, Miss., when for manufacture and reshipment via. the I. C. R. R., class N. per I. C. R. R. exceptions, under Note 23, to Southern Classification No. 43, I. C. C. No. 22, effective April 15, 1917, seven and one-half cents per one hundred pounds, up to and including June 24, 1918, and on and after June 25, 1918 to the present time, nine and one-half cents per one hundred pounds, per I. C. R. R. Freight Tariff No. 220-B, I. C. C. No. 5248, effective September 21, 1916. Upon reshipment from Aberdeen, Miss., via I. C. R. R. of the products of the bolts, heading, in accordance with the above, the rate to Aberdeen, Miss., from Longview, Miss., shall be reduced to two and one-half cents per one hundred pounds, up to and including June 24, 1918, and on and after June 25, 1918, to the present time, three cents per one hundred pounds, per I. C. R. R. Freight Tariff No. 590-K, I. C. C. No. 4854, effective September 19, 1913.

"On heading, rough sawed, carload, from Longview Miss., to Aberdeen, Miss., proper, Class N, per I. C. R. R. exceptions, under Note 23, to Southern Classification No. 43, I. C. C. No. 22, effective April 15, 1917, seven and one-half cents per one hundred pounds, up to and including June 24, 1918, and on and after June 25, 1918, to the present time, nine and one-half cents per one hundred pounds as per I. C. R. R. Freight Tariff No. 220-B, I. C. C. No. 5248, effective September 21, 1918.

"We find no provision in the I. C. R. R. Tariff for reduced rates to Aberdeen, Miss., on heading, rough sawed, when the products of same are reshipped, as are provided for on bolts, heading, when the products are reshipped."

The evidence for appellant showed without conflict that rough sawed heading is about twenty-two inches in length, 3/4 of an inch thick, and about nine inches wide, and rough sawed or unfinished; that the nine carloads in question was rough sawed heading, and was shipped to Aberdeen and there, in the plant of the appellant, manufactured into finished heading; that heading bolts are logs quartered lengthwise; that this entire lot of nine carloads of rough sawed heading, after being manufactured into finished heading, was by the appellant reshipped over the Illinois Central Railroad to other points.

Affirmed.

McFarland & Holmes, for appellant.

The E. L. Young Heading Co. appellant, paid the I. C. R. R. Co. appellee, what they considered excessive freight charges on nine cars of rough sawed heading, shipped from Longview, Mississippi, a distance of thirty-eight miles, over the I. C. R. R. and brought this suit in the circuit court of Monroe county to recover the overpayment in the freight charge; from a judgment in favor of defendant, the plaintiff, heading company, appeals.

Appellant seeks recovery on four theories. (1) That the I. C. R. R. tariff shows no rate on "rough sawed heading," speaking literally--in other words, there is no mention in the tariff of "rough sawed heading," and that being true the rate of four and one-half cents per one hundred fixed by the agent of defendant's railroad company in the waybill was authorized by law and should be held to be the rate. See 10. C. J. 220, and note 47; Central R. R. Co. v. Mauser, 49 L. R. A. (N. S.) 92, note at top of 2nd Column on page 100; Cotton Mill v. G. & S. I. R. R. Co., 84 Miss. 339, on question of right of a railroad to fix a rate.

(2) If there was no tariff of charges on this article and no rate was fixed by the agent of defendant railroad company, then the law implies a reasonable compensation, to be measured by what is ordinarily charged for like services under like conditions, and that a reasonable rate therefor would be two and one-half cents per one hundred. See 10 C. J. 441, (694 2. a); L. E. & St. L. R. R. Co. v. Wilson et al., 4 L. R. A. 244.

(3) That a rate was fixed in the tariff of charges of appellee covering this article, which rate was a milling in transit rate of two and one-half cents per one hundred on bolts heading, as shown by I. C. R. R. Tariff No. 220 "B" I. C. C. No. 5249, and tariff No. 590-K, I. C. No. 4854. See...