Mobile & Ohio Railroad Company v. Laclede Lumber Company

• Decision Date: 02 December 1919
• Parties: MOBILE & OHIO RAILROAD COMPANY, a Corporation, Appellant, v. LACLEDE LUMBER COMPANY, a Corporation, Respondent
• Court: Missouri Court of Appeals

216 S.W. 798

202 Mo.App. 630

MOBILE & OHIO RAILROAD COMPANY, a Corporation, Appellant, v. LACLEDE LUMBER COMPANY, a Corporation, Respondent

Court of Appeals of Missouri, St. Louis

December 2, 1919

Argued and Submitted November 10, 1919.

Appeal from the Circuit Court of the City of St. Louis.--Hon. Thos C. Hennings, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

R. P. & C. B. Williams for appellant.

Carl Fox of Counsel.

(1) The law is well settled that neither by contract nor through mistake or inadvertence can a carrier estop itself from demanding and collecting from either the consignor or consignee the balance of the lawful freight rate where it has delivered goods without charging and collecting the same in full. Union Pacific R. R. v. Am. Smelting Co., 202 F. 720; Illinois Central Railroad Co. v. Henderson, 226 U.S. 441, 57 L.Ed. 290; Kansas City R. R. Co. v Carl, 227 U.S. 639, 57 L.Ed. 683; Texas R. R. Co. v Mugg, 202 U.S. 242, 50 L.Ed. 1011; Louisville R. R. Co. v. Maxwell, 237 U.S. 94, 59 L.Ed. 853; Mo. Pac. R. R. Co. v. Schnouty, 245 U.S. 641, 52 L.Ed. 527; Bush v. Keystone Driller Co., 199 S.W. (Mo. App.) 597; Yazoo v. Picher, 190 S.W. (Mo. App.) 387; Dunn v. Southwestern R. R., 166 Mo.App. 372; Southwestern R. R. Co. v. Spring River, 169 Mo.App. 109, 154 S.W. 465; Sutton v. Railroad, 159 Mo.App. 685; Kansas City So. R. R. v. Albers, 223 U.S. 573, 57 L.Ed. 566. (2) The consignee is presumed to be the owner and is prima facie liable for the freight and is bound to take notice of the correct and legal rate, and if the carrier by mistake collects less than the legal rate, such consignee is liable for the difference and cannot claim estoppel. The following cases are directly in point: Union Pac. R. R. v. American Smelting Co., 202 F. 720; Central of Ga. R. R. v. Willingham & Son, 70 S. E. (Ga.) 199; Penn. R. R. Co. v. Titus, 109 N. E. (N. Y.) 857; Central of Ga. v. Birmingham, 64 So. 202; N. Y. & New Haven R. R. Co. v. York, 215 Mass. 36, 102 N.E. 366; Cornelius v. Central of Ga., 69 So. 331; Western R. R. v. Callius, 78 So. 833; Southern Cotton Oil Co. v. So. R. R., 147 Ga. 646, 95 S.E. 251; Southern Flour Co. v. Seaboard Air Line, 95 S. E. (Ga.) 997; New York Central R. R. Co. v. York, 230 Mass. 206, 119 N.E. 855; Chicago, M. & St. P. R. R. v. Greenberg, 139 Minn. 428, 166 N.W. 1073; Chicago, I & L. R. R. v. Monarch L. Co. 202 Ill.App. 20; Bush v. Keystone Driller Co., 199 S.W. (Mo. App.) 597.

Geo. W. Lubke and Geo. W. Lubke, Jr. for respondent.

(1) The consignor, and not the consignee, is prima facie liable for the payment of undercharges of freight, because he has entered into the contract of shipment with the carrier. Central R. R. Co. v. MacCartney, 68 N. J. L. 165; Baltimore, etc., R. R. Co. v. New Albany, etc., Co., 48 Ind.App. 647. (2) To make the consignee liable for the freight charges, there must be an express promise on his part to pay the same or an implied promise arising from his acts in inducing delivery to him without payment of the charges. The mere acceptance and removal of the goods by the consignee with knowledge that the carrier is giving up his lien for his charges does not create an obligation to pay charges beyond the amount stated. Central R. R. Co. v. MacCartney, 68 N. J. L. 165; Hutchinson on Carriers (3 Ed.), sec. 807. (3) Where the consignor has agreed to deliver goods to the consignee f. o. b. at the place of destination, and the consignee has paid freight rates for the carriage of the same less than those fixed by law, the consignee is not liable for the differences between the amount paid and the amount fixed by law. Central of Georgia R. R. v. Southern Ferro Concrete Co., 193 Ala. 108; New York Central, etc., R. R. Co. v. Butler, 145 N.Y.S. 918.

REYNOLDS, P. J. Allen and Becker, JJ., concur.

OPINION

REYNOLDS, P. J.

Plaintiff commenced its action against the defendant before a justice of the peace, filing this statement:

"Laclede Lumber Co., Dr., in account with

Mobile & Ohio Ry. Co., Cr.

"To under charge on shipment of Lumber

contained in car No. 132,927, Southern,

delivered to Laclede Lumber Co. on

December 5, 1912, by Terminal Rail-

road Ass'n, on which there was a

claim of freight charges (including

demurrage of $ 17),

$ 98.44

The proper amount to be collected being,

108.44

$ 10.00"

From a judgment there against plaintiff an appeal was taken to the circuit court, where the cause was tried de novo by the court, a jury being waived, on the following stipulation, duly signed by counsel:

"That on the 5th day of November, 1912, the Brownlee Lumber Company of Utica, Mississippi, shipped a car of lumber to the Funk Lumber Company at Cairo, Illinois--notify C. G. Gauss Lumber Company.

"Shipment arrived in Cairo, November 8, 1912, and said C. G. Gauss Lumber Company was duly notified and the shipment remained at that point until November 30, 1912, during which time demurrage charges accrued. On the latter date the C. G. Gauss Lumber Company sold the car of lumber to the defendant, f. o. b. St. Louis, and reconsigned the shipment from Cairo, Illinois, to the Laclede Lumber Comapny of St. Louis, by the Mobile & Ohio Railroad Company. The latter railroad company delivered the car of lumber to the Terminal Railroad Association, which company made delivery to the Laclede Lumber Company on December 5, 1912; and before delivery and as a condition precedent to delivery, the Terminal Railroad Association required the payment of and collected from said company $ 98.44 on account of freight and demurrage charges against the car while the same remained on the track at Cairo, Illinois, before being reconsigned to St. Louis.

"The proper amount of freight and other charges which should have been collected was $ 108.44, in accordance with the lawfully established tariff of freight and other charges duly filed with the Interstate Commerce Commission, and published by the plaintiff in accordance with the law and the rules of the Interstate Commerce Commission.

"By mistake of a clerk of the plaintiff, the bill for the freight and other charges was made out as $ 98.44 instead of for $ 108.44.

"Several months after the car had been delivered to the Laclede Lumber Company, the error in the freight bill was discovered by plaintiff and defendant was requested by plaintiff to pay the $ 10 additional, being the $ 10 sued for in this action; and defendant declined to pay the amount, contending that it was not liable for the same and that it had made payment in full to the C. G. Gauss Lumber Company for the car of lumber.

"At the time the error in the freight bill was discovered, the C. G. Gauss Lumber Company was in liquidation.

"The freight bill paid by defendant is attached hereto as a part hereof."

This freight bill does not appear to have been in evidence and is not before us.

There was a judgment for defendant, from which plaintiff has duly appealed.

The errors assigned are to the ruling of the court in finding for defendant on the agreed statement, and in overruling plaintiff's motion for a new trial.

With the agreed statement of facts before us, and it was solely upon this that the case was heard and determined in the trial court, there can be no doubt but that plaintiff, appellant here, is entitled to recover the ten dollars for which it brought this action, that amount being so much less than the tariff charges as filed and set forth in the tariff on file by the Interstate Commerce Commission and duly published.

The amount of the lawful charges for the transportation of freight in interstate commerce is fixed by schedules of rates legally published pursuant to the act to regulate commerce and the amendments thereto (Act June 29, 1906, c. 3591, 34 Stat. 586, sec. 2); and it was unlawful for the plaintiff to charge or for the consignee to pay, any less that the lawful rate: neither rebates, concessions, or other deviations from the approved and published tariff rates being allowed. The rate fixed in the schedule of rates filed and published under the Acts of Congress, is the only lawful rate. [See Act Feb. 19, 1903, 32 Stat., c. 708, p. 847 (U. S. Comp. St. Supp. 1911, p. 1309).] The consignee knew this, for it is charged with knowledge of the law.

"In every case of this character, in which there is no express contract by the consignee to pay the transportation charges, the question is whether or not the facts of the case raise the implication of such a contract. The law is well settled that such a contract is implied from the acceptance by a consignee or consignees of goods shipped under a bill of lading which contains the stipulation, the consignee or consignees paying freight, or any similar provision." (Citing cases.)

"The reason for this rule is that the consignee accepts the goods with knowledge that the carrier looks to him for payment of the transportation charges and waives his lien for them by delivery in reliance upon the consignee's implied promise, evidenced by his acceptance of the goods, that he will pay the charges. But this reason exists in all its force, in the absence of a bill of lading, wherever the consignee accepts the goods knowing that the carrier looks to him for payment, waives the lien, and delivers the goods in the faith that he will pay the charges. And as there is in such cases the same reason for the implication of a promise by the consignee to pay these charges...