Oregon-Washington R. & Nav. Co. v. Seattle Grain Co.
| Decision Date | 22 January 1919 |
| Docket Number | 14577. |
| Citation | 106 Wash. 1,178 P. 648 |
| Court | Washington Supreme Court |
| Parties | OREGON-WASHINGTON R. & NAV. CO. v. SEATTLE GRAIN CO. |
Appeal from Superior Court, King County; Boyd J. Tallman, Judge.
Action by the Oregon-Washington Railroad & Navigation Company against the Seattle Grain Company. From a judgment for defendant, a demurrer having been sustained to the complaint plaintiff appeals. Reversed, and cause remanded, with instructions overruling the demurrer.
Bogle, Graves, Merritt & Bogle, of Seattle, for appellant.
Ballinger Battle, Hulbert & Shorts, of Seattle, for respondent.
Higgins & Hughes, Hyman Zettler, and Kerr & McCord, all of Seattle and Stephen V. Carey, of Spokane, amici curiae.
Geo. W Korte and C. H. Hanford, both of Seattle, in reply to amici curiae.
In this action the appellant, a common carrier by railroad, seeks to recover from the respondent, a shipper over its line of railroad, the difference between certain charges made for carrying freight and the sums it was required to charge by its printed and published tariff schedules. A demurrer to the complaint, based on the grounds that facts sufficient to constitute a cause of action were not stated, and that the action was not commenced within the time limited by law, was interposed and sustained by the court. From a judgment of dismissal, entered after the appellant had elected to stand on its complaint and refused to plead further, this appeal is prosecuted.
The complaint sets forth two causes of action, separately stated. The first was, in substance, this: The appellant owns and operates a line of railroad which extends from Thornton, in the state of Washington, to Seattle in the same state, the road passing in the course of its route into the state of Oregon. It also has a line extending from Thornton to Spokane, Wash., where it connects with the road of the Northern Pacific Railway Company, which extends from that point to Seattle. On May 29, 1911, the respondent, through its agent, delivered to the appellant, for carriage from Thornton to Seattle a certain quantity of wheat, for which it paid as freight the sum of $482.23. The wheat was carried by appellant over the route first mentioned, that is, by its line of railway passing into the state of Oregon, and duly delivered to the respondent at its point of destination. For more than 30 days prior to the time the wheat was consigned for transportation, and at such time, the appellant had caused 'to be duly issued, filed with the Interstate Commerce Commission and posted at the stations from which the same applied, all as provided by law, its certain tariff, known and designated as 'Tariff 3 A. I. C. C. 1495,' and that the said tariff, so published, filed, and posted as aforesaid, prescribed the only lawful charges for the transportation of wheat' which the appellant was permitted by law to exact. The Northern Pacific Railway Company also had a tariff rate, published, filed, and posted in the same manner, fixing the lawful rate for the transportation of wheat from Spokane to Seattle. The tariff rate for the transportation of wheat from Thornton to Spokane over the appellant's line of railway and the tariff rate over the Northern Pacific Railway Company's line of railway from Spokane to Seattle aggregated 22 cents per bushel; and, while the tariff rate over the line on which the wheat was actually carried was greater than this combined rate, it is alleged that the respondent, inasmuch as it did not designate the route over which the wheat was to be carried, was entitled to the lesser rate. The lawful tariff at this lesser rate for the number of bushels carried was $624.07. Deducting from this sum the amount actually paid leaves a balance of $141.84, and for this sum judgment is demanded in this cause of action.
The second cause of action was for the transportation of wheat between the same points, consigned for transportation on May 31, 1911. It is alleged that for the carriage of this wheat the respondent paid the appellant the sum of $354.25; that it afterwards demanded a refund of $150.10, claiming that the appellant had charged it this sum in excess of its lawful tariff rates; that the appellant, believing the claim to be correct, paid the same, and afterward ascertained that the amount refunded was in excess of a proper refund in the sum of $60.05, and for this sum demanded judgment.
At the time the wheat was delivered to the carrier for transportation it delivered to the respondent straight bills of lading therefor, in conformity with section 3386 of Rem. & Bal. Code. The bills of lading were signed by both the agent of the consignee and the appellant. By them the appellant agreed to carry the grain to the place of destination named therein, subject to the conditions stated therein 'which are agreed to by the shipper and accepted for himself and his assigns.' No tariff rate is specifically named in the bills of lading, but it is recited in each of them that the property is received 'subject to the classification and tariffs in effect on the date' of its issue, and one of the conditions is that the 'owner or consignee shall pay the freight and all other lawful charges accruing on said property, and, if required, shall pay the same before delivery.'
The first ground of demurrer questions the sufficiency of the facts. Had the transportation of the grain been interstate there would have been but little, if any, room for dispute upon the question. By the federal statute relating to interstate commerce common carriers of interstate freight are required to prepare a uniform tariff schedule, publish the same by filing it with the Interstate Commerce Commission and posting copies thereof at all stations where freight is received for transportation, and charge in accordance with such published rate. Speaking of the effect and purport of the act, the Supreme Court of the United States has said that neither the intentional nor accidental misstatement of the applicable published rate will bind the carrier or shipper; that the published rate is that which the carrier must exact and the shipper must pay, and has allowed recovery on the part of the shipper when an overcharge has been made and recovery on the part of the carrier where there has been an undercharge. But the present shipment was as intrastate shipment, and the federal statutes were not wholly applicable. The state statute then in force, however, contained provisions similar in their purport to the federal statute. Common carriers of intrastate freight were required to establish and maintain uniform freight rates, applicable to all persons similarly situated, and were required to publish such rates by filing the same with the State Railroad Commission, and keep at each station a copy thereof, for the inspection of interested persons. Rem. & Bal. Code, §§ 8627, 8661. Seemingly the rules governing the rights of the parties under the one statute would be applicable under the other, and if a recovery may be had by the carrier for an undercharge under the federal statute, it is entitled to a like recovery under the statute of the state. There is enough in the complaint, sufficient as against a general demurrer at least, to show that the appellant carrier was maintaining a uniform rate for the transportation of freight, and that through inadvertence it made an undercharge in the instances of the shipments in question. Following the federal rule, we hold that a complaint, reciting these facts, states facts sufficient to constitute a cause of action.
The second ground of demurrer, whether the action was commenced within the time limited by law, is the ground to which the arguments of the parties have been principally directed. The action was commenced more than five years, but less than six years after the cause of action accrued, and the trial court held that this was too late. The applicable statutes are found at sections 155, 157, 159, and 165 of Rem. Code, the pertinent portions of which we quote:
It is manifest, therefore, that the right to maintain the action at this time hinges upon the nature of the liability sued upon. If the action is one founded upon a contract in writing, or upon a liability, express or implied, arising out of a written agreement, the action is in time; otherwise it falls within one of the other of the subsequent statutes from which quotations are made, and is barred by them. It will be remembered from the statement that bills of lading were issued on the consignment of the grain for shipment, signed by both the consignee and the shipper, which expressed the terms of the shipment, save that it did not express the amount to be paid therefor further than to say that it should be in accordance with the established rates. Instruments of this sort, when they express the consideration to be paid, are uniformly held to be contracts. Speaking of such an instrument, Mr. Justice Miller, in Pollard v. Vinton, 105 U.S. 7, 26 L.Ed. 998, used this language:
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Oregon-Washington R. & Nav. Co. v. Seattle Grain Co.
...GRAIN CO. No. 14577.Supreme Court of WashingtonNovember 3, 1919 On rehearing en banc. Original opinion adhered to. For former opinion, see 178 P. 648. PER Upon a rehearing en banc, the majority of the court adheres to the opinion heretofore filed herein, as reported in 178 P. 648; and for t......