Missouri Pacific Railroad Company v. Pfeiffer Stone Company

• Decision Date: 17 November 1924
• Docket Number: 247
• Citation: 266 S.W. 82,166 Ark. 226
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. PFEIFFER STONE COMPANY
• Court: Arkansas Supreme Court

266 S.W. 82

166 Ark. 226

MISSOURI PACIFIC RAILROAD COMPANY v. PFEIFFER STONE COMPANY

No. 247

Supreme Court of Arkansas

November 17, 1924

Appeal from Independence Circuit Court; Dene H. Coleman, Judge reversed.

STATEMENT OF FACTS.

This as an action by the Missouri Pacific Railroad Company against the Pfeiffer Stone Company to recover a balance of freight charges which, through the carrier's mistake, had not been claimed or collected at the time of the delivery of the stone.

The case originated in the justice court, and was appealed to the circuit court and tried there on an agreed statement of facts. The action is based upon a shipment of cut stone by the Pfeiffer Stone Company, a corporation, from Pfeiffer Arkansas, to Alexandria, Louisiana. The shipment was made on the 21st day of April, 1917, and the weight of the stone was 44,700 pounds. The freight collected was based upon a rate of 12 cents per cwt., making a total of $ 53.64. The shipment of stone was consigned to the Hudson Construction Company, at Alexandria, Louisiana, f. o. b. cars at Pfeiffer, Arkansas.

The bill of lading issued at the time of the shipment was introduced in evidence. The published tariff rates of the Interstate Commerce Commission upon cut stone is 34 cents per cwt. This made an undercharge difference of $ 98.34, which is sought to be recovered in this suit.

The circuit court was of the opinion that the Pfeiffer Stone Company was not liable because it ceased to be the owner of the stone shipped when it was delivered to the carrier, and was also of the opinion that the claim was barred by the statute of limitation of three years.

From the judgment against it the railroad company has appealed to this court.

Judgment reversed.

Thos B. Pryor and Ponder & Gibson, for appellant.

A consignor with whom a contract of shipment is made is liable for the charges provided for therein. 6 Cyc. p. 500; 85 Am. Dec. 707; 8 Gray (Mass.) 281; 15 Am. Dec. 615. 97 Ark. 353; 24 A. L. R. 1160. Even though the bill of lading provides for the delivery of the goods to the consignee on his paying freight, the consignor remains liable on his contract. 69 Am. Dec. 74; 47 Am. Dec. 162; 23 N.C. 236; 10 Watts (Pa.) 384; 10 C. J. 445; 130 F. 860. When a consignee does not pay the proper amount of freight charges, an interstate carrier may look to the shipper, and is not required to sue the consignee. 241 F. 727; 130 F. 860. The collection of a less rate than that fixed by law does not relieve the shipper of paying the true amount. 49 L. R. A. (N. S.) 92; 100 Ark. 221. A bill of lading represents a written contract between the shipper and carrier. 118 N.Y.S. 982; 243 U.S. 592; 251 F. 230; 127 Ark. 247. And actions thereon may be brought within five years after the cause of action accrues. C. & M. Dig., 6956. A carrier, upon the performance of its contract to transport goods to another State, may sue in a State court to recover, as its right of recovery is based upon contract. 97 Ark. 354.

McCaleb & McCaleb, for appellee.

Appellant's claim is barred by the statute of limitations. The bill of lading was not a written contract, as it does not show the amount of freight to be paid. A contract partly in writing and partly oral is in legal effect an oral contract, and governed by the period of limitations for oral contracts. 25 Cyc. 1042; 5 N.E. 408; 12 N.W. 780; 49 A. 66. Where parol evidence is necessary to establish a part of the contract, it is treated as an oral contract. 32 N.E. 424. See 47 Ark. 317. The right to recover on an implied contract is limited to three years. 67 Ark. 27; 47 Ark. 301; 99 Ark. 105.

OPINION

HART, J., (after stating the facts).

As stated, this is an action to recover a balance of freight charges which, through the carrier's mistake, had not been collected at the time of the delivery of the goods. The shipment was an interstate one, and the undercharge resulted from a mistake made by the agent of the carrier in putting a less rate in the bill of lading than that established by the Interstate Commerce Commission and promulgated by the railroad company on its tariff or rate sheets. St. L. I. M. & S. R. Co. v. Faulkner, 111 Ark. 430, 164 S.W. 763; K. C. & Memphis Ry. Co. v. Oakley, 115 Ark. 20; and St. L. I. M. & S. R. Co. v. Starbird, 243 U.S. 592, 61 L.Ed. 917, 37 S.Ct. 462.

These cases and many others hold that the Carmack Amendment requires the receiving carrier to issue a through bill of lading, and makes that bill of lading the contract of shipment.

In the case before us, the Missouri Pacific Railroad Company, as a common carrier, entered into a contract with the Pfeiffer Stone Company whereby it agreed to transport a car of stone from Pfeiffer, Arkansas, to Alexandria, Louisiana. In such cases the carrier had the right to look to the consignor or owner of the goods for the payment of the freight, and it may waive its lien upon the goods by delivering them to the consignee and still hold the consignor liable upon the contract of shipment. St. L. S.W. R. Co. v. Gramling, 97 Ark. 353, 133 S.W. 1129.

In the case note to 24 A. L. R. 1163, the general rule is declared to be that stipulations in a bill of lading that the goods are to be delivered to the consignee, "he paying freight," or any similar provision, are for the benefit of the carrier, so that delivery to the consignee without collection of the freight will not release the consignor from liability therefor, in the absence of a special stipulation to the contrary. Many decisions of various courts of last resort of the different States are cited in support of the rule. The rule is well established that, on interstate shipments, a carrier can compel the shipper to pay the difference between the legally established interstate rate and a lower rate quoted or collected by mistake or otherwise. Louisville & N. R. Co. v. Allen (Ky.), 152 Ky. 145, 153 S.W. 198; New York, N. H. & H. R. Co. v. York & Whitney Co. (Mass.), 215 Mass. 36, 102 N.E. 366; and Central R. Co. v. Mauser (Penn.), 49 L.R.A. (N.S.) 92, and case note.

The reason given is that the aim of the Interstate Commerce Act is to secure for each and every shipper of goods in interstate commerce absolute equality of reasonable rates, without discrimination or preference. No excuse which operates as an evasion of the rates established by the Interstate Commerce Commission and promulgated by the carrier, has any standing as a matter of law in defense of a proved violation of such rate. It is now the established rule that a carrier cannot depart to any extent from its published schedule of rates for interstate transportation on file without incurring the penalties of the act of Congress. Louisville & Nashville R. R. Co. v. Mottley, 219 U.S. 467, 55 L.Ed. 297, 31 S.Ct. 265. The schedule of rates, when established by the Interstate Commerce Commission and promulgated by the carrier, becomes a rate established by law, and cannot be varied by the act of the parties.

The tariff on file necessarily entered into and formed a part of the contract of shipment by the mere operation of law. Texas & Pacific Ry. v. Mugg, 202 U.S. 242, 50 L.Ed. 1011, 26 S.Ct. 628. Hence it is immaterial that the bill of lading had a less rate than the tariff rate on cut stone. It was beyond the power of the parties to make a valid contract for a less rate than the published schedule filed with the Interstate Commerce Commission, and, notwithstanding a contract of this kind, the shipper is liable for the undercharge. If the rate did not prevail, the act of Congress would be ineffectual to secure uniformity in the treatment of all shippers and to prevent special and secret agreements with respect to rates for interstate transportation.

It is sought to uphold the judgment upon the...