Louisville & N.R. Co. v. Allen

• Decision Date: 11 February 1913
• Citation: 152 Ky. 145,153 S.W. 198
• Parties: LOUISVILLE & N. R. CO. v. ALLEN.
• Court: Kentucky Court of Appeals

153 S.W. 198

152 Ky. 145

LOUISVILLE & N. R. CO. v. ALLEN.

Court of Appeals of Kentucky.

February 11, 1913

Appeal from Circuit Court, Allen County.

Action by the Louisville & Nashville Railroad Company against J. W Allen. From a judgment dismissing the petition, plaintiff appeals. Reversed and remanded, with directions.

Goad &amp Oliver, of Scottsville, W. G. Dearing, Chas. H. Moorman, and Benjamin D. Warfield, all of Louisville, for appellant.

Bradburn & Basham, of Bowling Green, for appellee.

LASSING J.

The Louisville & Nashville Railroad Company filed suit in the Allen circuit court against J. W. Allen, in which it sought to recover of him $732, alleged to be due it on account of undercharges made by it to him in the shipment of freight over its lines between Wildwood, Petroleum, and Adolphus, in Kentucky, and other points along its line in the state of Tennessee and Scottsville, Ky. The defendant answered denying that he was indebted to the company in any sum whatever; pleaded that prior to the date of the shipments upon which it is alleged there was an undercharge, the company had posted in its depots along its line a schedule of tariff rates; and that the shipments were made by him in accordance with the provisions of this tariff schedule--that is, at the rates therein provided; that now to permit the company to charge him a rate in excess of that agreed upon would cause him to suffer great loss; that, if there was an undercharge, which he denied, the plaintiff knew all along that this undercharge was made and suffered and permitted it to continue; and that it should not now be heard to complain, or enabled to recover it back at his expense. The affirmative matter of the answer was traversed in the reply. Proof was taken, the case submitted, and the chancellor, upon consideration, held that plaintiff was not entitled to the relief sought and dismissed the petition. The railroad company appeals.

At the outset the question is raised as to whether or not the shipments for which these charges were made were interstate shipments. Scottsville is in Kentucky. Wildwood, Petroleum, and Adolphus, points from which a part of this freight was shipped, are also in Kentucky, but it is alleged that the line of railroad, after passing these stations, runs for some distance in the state of Tennessee, and thence back into Kentucky to Scottsville; and it is insisted that this fact makes it an interstate shipment as to all freight shipped in this manner from one point to another point in this state. This position is well taken, as was expressly decided in Hanley v. K. S. S. Ry. Co., 187 U.S. 617, 23 S.Ct. 214, 47 L.Ed. 333, where when goods had been shipped from one point to another point in the same state, the road between these two points running through another state, the court held: "The transportation of these goods certainly went outside of Arkansas, and we are of the opinion that in its aspect as commerce it was not confined within the state. *** To bring the transportation within the control of the state, as part of its domestic commerce, the subject transported must be during the entire voyage under the exclusive jurisdiction of the state." This principle was recognized and approved in State ex rel. Railroad Warehouse Commission v. C., St. P., M. & O. R. Co., 40 Minn. 267, 41 N.W. 1047, 3 L.R.A. 238, 12 Am.St.Rep. 730; Sternberger v. Cape Fear & Y. Valley R. Co., 29 S.C. 510, 7 S.E. 836, 2 L.R.A. 105; Milk Producers' Pro. Ass'n v. D., L. & W. R. Co., 7 Interst. Com. R. 92.

The point next raised is that the tariff governing these shipments was never published, as the law provides. So much of section 6 of the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 380 [U. S. Comp. St. 1901, p. 3156]) as bears upon this point reads as follows: "That every common carrier subject to the provisions of this act shall file with the commission created by this act and print and keep open to public inspection schedules showing all the rates, fares and charges for transportation between different points on its own route and between points on its own route and points on the route of another carrier by railroad, by pipe lines, or by water, when a through route and joint rate has been established." The evidence unquestionably shows that the railroad company did seasonably make out and file with the Interstate Commerce Commission the schedules provided for by this section of the act, and that copies thereof were forwarded to all of the agents along its line or road; but the proof further shows that the agents at some of the stations from which these shipments were made either did not receive the schedules or failed to post them after they were received. The rates fixed in these schedules are undoubtedly higher than the rates paid by appellee, and the evidence satisfactorily shows that the difference between the prices actually paid on these shipments and the tariff charges amounts to the claim sued on; and, unless the failure of the company to post copies of this schedule in the depots in question invalidates same, and renders it inoperative and unenforceable, or the company, by reason of its laches in asserting its claim, is estopped from enforcing the payment of the undercharge, the judgment should have been in favor of the company.

The law provides a heavy penalty, a fine of not less than $1,000 nor more than $20,000, upon both shipper and carrier, for a failure to observe the published tariff rates as shown by the schedule. The purpose of the Interstate Commerce Act, in requiring copies of the schedule of rates to be kept on file in all depots and open to the inspection of the public, is to advise shippers of the rates which the companies are authorized to charge, and a prospective shipper would naturally go to the depot to consult the agent relative to his shipment. The provision of the law to the effect that these schedules should be posted in two public and conspicuous places in every depot, station, or office of such carrier where freight is received for transportation, was calculated to bring such tariff schedule directly under the notice of the shipper, where he would have every...