Payne v. Clarke

• Decision Date: 08 March 1921
• Docket Number: 855.
• Citation: 271 F. 525
• Court: U.S. District Court — Southern District of California
• Parties: PAYNE, Director General of Railroads, v. CLARKE.

271 F. 525

PAYNE, Director General of Railroads, v. CLARKE.

No. 855.

United States District Court, S.D. California, Southern Division.

March 8, 1921

Fred E Pettit, Jr., and E. E. Bennett, both of Los Angeles, Cal for plaintiff.

Moe M Fogel, of Los Angeles, Cal., for defendant.

BLEDSOE District Judge.

Plaintiff under appropriate authority, sues to recover $111.44 alleged to be due as an unpaid balance on lawful transportation charges on an automobile shipped by defendant from Ida Grove, Iowa, to Portland, Or. The total charges, 'computed in accordance with tariffs, rates and classifications approved by and on file with the Interstate Commerce Commission of the United States and duly published and posted as provided by law,' together with required War Tax, amounted to $247.40.

Defendant, answering, admits, either expressly or by failure to deny, all the material allegations of the complaint, save that he denies that the rates and classifications as approved by the Interstate Commerce Commission 'were published as required by the act providing for the regulation of common carriers,' etc. He also alleges in appropriate language a counterclaim against the plaintiff in the sum of $150, arising out of damage done to the automobile in transit, 'caused by the negligence of the plaintiff herein in its method of handling said shipment en route. ' Defendant also alleges that, according to rates quoted him by agents of plaintiff, he could have shipped said automobile from Sioux City, Iowa, or Omaha, Neb., to Portland, for 'approximately $125,' but was induced to ship the same from Ida Grove at a cost then stated to him to be the sum of $135.96, which he then paid; that but for the mistake asserted to have been made by plaintiff's agent, etc., he would have shipped the said automobile from either Sioux City or Omaha; and that it is now inequitable, etc., to require him to pay the sum demanded herein, etc.

Plaintiff moves to strike out all the above-mentioned allegations, and also demurs to the answer on the ground that no defense or counterclaim is stated.

The question of the liability of a shipper to pay to the common carrier the exact charge provided for in the approved rates and tariffs, has been given careful consideration by this court in Davis v. Southern Pacific (D.C.) 235 F. 731, and In re Independent Sewer Pipe Co. (D.C.) 248 F. 547. The Supreme Court of the United States in L. & N.R.R. Co. v. Maxwell, 237 U.S. 94, 97, 35 Sup.Ct. 494, 495 (59 L.Ed. 853, L.R.A. 1915E, 665) in discussing the matter of public policy involved, and holding the shipper liable as for the payment of the exact rate fixed and approved by the Interstate Commerce Commission, said:

'Ignorance or misquotation of rates is not an excuse for paying or charging either less, or more than the rate filed. This rule is undeniably strict and it obviously may work hardship in some cases, but it embodies the policy which has been adopted by Congress in the regulation of interstate commerce in order to prevent unjust discriminations.'

The same authority in K.C.S. Ry. v. Carl, 227 U.S. 639, 653, 33 Sup.Ct. 391, 395 (57 L.Ed. 683), held:

'Neither the intentional nor accidental misstatement of the applicable published rate will bind the carrier or shipper. The lawful rate is that which the carrier must exact and that which the shipper must pay. The shipper's knowledge of the lawful rate is conclusively presumed.'

Assuming, as the court must do, the correctness of plaintiff's allegation that the full amount of the true rate for the service rendered has not been paid, plaintiff will be entitled to recover, even if such rate were not published as required by the act, or if plaintiff's agent gave to defendant an erroneous rate. In other words, the fixing of a rate, followed by the filing of the same with, and the approval of, the Interstate Commerce Commission, constitutes the lawful and binding rate to be paid, irrespective of any question of publication thereafter.

The main argument in the case centers about the right of defendant to assert herein his counterclaim for...