Post v. Southern Ry. Co.

• Decision Date: 27 May 1899
• Citation: 52 S.W. 301,103 Tenn. 184
• Parties: POST et al. v. SOUTHERN RY. CO.
• Court: Tennessee Supreme Court

52 S.W. 301

103 Tenn. 184

POST et al. v. SOUTHERN RY. CO.

Supreme Court of Tennessee.

May 27, 1899

Appeal from chancery court, Shelby county; Lee Thornton, Chancellor.

Bill by John A. Post and others against the Southern Railway Company. Decree for complainants. Defendant appeals. Reversed.

F. P Poston, for appellant.

Carroll & McKellor, for appellees.

WILKES J.

This bill was filed in the chancery court of Shelby county on February 17, 1899, by John A. Post & Co. and 10 other firms of cotton shippers, named in the bill, against the Southern Railway Company, to compel it by mandatory injunction to issue its bills of lading for cotton tendered it by complainants for transportation to New England points, with the routing or lines of connecting carriers selected by complainants inserted therein. The material allegations of the bill are: That on the day named the Southern Railway Company, a corporation under the laws of Virginia, was operating its line of railway from Memphis, Tenn., to Alexandria, Va., having a "joint freight tariff in connection with, among other railroads, the Pennsylvania Railroad and the New York, New Haven & Hartford Railroad thus forming a continuous line *** from the city of Memphis to the city of Fall River, Massachusetts," and that the joint freight tariff provided for a through rate from Memphis, and over the lines named, on uncompressed cotton and was certified to conformably to the interstate commerce law, and concurrent over the lines named, at the prescribed rate of 50 1/2 cents per 100 pounds, which, by agreement between the several carriers named, was to be divided inter sese. That on the 17th of February, 1899, the complainants tendered to defendant 24 bales of cotton, marked "D. Z. S.," with the following shipping directions, viz. via defendant's line to Alexandria, thence via Pennsylvania Railroad to Jersey city, N. J., and thence via the New York, New Haven & Hartford Railroad to Fall River, Mass., its destination; and requested that it issue its usual bill of lading, with the said routing inserted, at the said joint tariff rate of 50 1/2 cents, which defendant refused, claiming itself the right to say over what connecting lines it should be transported. That the defendant and the other lines named had all necessary facilities for carrying said cotton, and had no legal excuse for refusing to accept it, and issue its bill of lading with the routing selected by complainants therein. That this refusal was due to a secret agreement made at New Orleans, the terms of which are unknown to complainants, the tenor of which was to restrain trade and commerce, and was entered into between all the lines of railroad initial at Memphis, and applicable to no other than cotton shipments from Memphis, and violated the laws of the United States-- i. e. the Sherman anti-trust act--and the statute of Tennessee, because it was an illegal discrimination against Memphis, and against a particular class of shipments. That complainants have been cotton shippers for many years, buying for Eastern mills, many of whom require cotton to be shipped over certain designated lines. That they have, since the alleged agreement, repeatedly tendered to defendant and other railroads at Memphis shipments of cotton, with routing given, and demanded bills of lading therefor, which were refused; and that the conduct of defendant has been oppressive, continued, and repeated, and has caused them irreparable loss and damage. That defendant had, prior to said agreement, received from them cotton for Eastern points with such routing as they selected inserted in the bill of lading. The bill claims the right on the part of the shipper to compel the defendant to receive, issue its bills of lading for, and transport, over such connecting lines as complainants may select, all cotton tendered by them. The prayer was for the issuance of a mandatory injunction requiring defendant to receive the 24 bales tendered, issue its bill of lading therefor with shipping directions inserted, and requiring it to receive all cotton tendered by complainants in future on their customary bill of lading, and that it be made perpetual on final hearing, and for general relief. The injunction as prayed issued.

Defendant filed its demurrer and answer to said bill, the demurrer containing three grounds,--the first, that there is no equity in the bill; second, want of jurisdiction of the subject-matter, and that the remedy, if any, was in the circuit court of the United States. The third was to the effect that defendant company cannot be required, against its consent, by the complainants herein or the court, to accept the routing given by the complainants for the transportation of said freights as set out in the bill, but the routes and agencies to be selected for such transportation beyond Alexandria, Va., were and are wholly within defendant's control,-- which was overruled by the court. The answer of defendant, coupled with the demurrer, admitted its corporate existence, and ownership of the line from Memphis to Alexandria; that the joint through freight tariff alleged in the bill had been established, and was in force on February 17th, having been filed with and approved by the interstate commerce commission, and provided for a joint tariff rate of 50 1/2 cents per 100 pounds on uncompressed cotton from Memphis to Fall River, Mass., over the lines indicated; that it does not know, and cannot admit the averment, that the other railroad lines named in said tariff have certified their acceptance of it to the commission as required by law, and demands proof; that by said tariff defendant and the other lines named agreed to a division of the rate inter sese. Defendant alleges that by other provisions of the same tariff deliveries of cotton could be made by it to the Pennsylvania Railroad for delivery to Fall River, Mass., under said tariff, and at the through rate, either at Hagerstown, Md., over the Norfolk & Western Railway, or at Pinner's Point, Va., to be used as the exigencies of the business might require; and that it had the right to select the connecting line over which the same should be carried. The tender of the 24 bales of cotton alleged in the bill is admitted, as is defendant's refusal to receive it and issue its bills of lading under the conditions demanded by complainants; but defendant says that at the time of this refusal to allow complainants to route said cotton through to destination it was ready, willing, and offered to receive said 24 bales, and any other cotton that might be offered, and safely and promptly carry it to Alexandria, Va., and deliver it to any person or carrier the shipper might name, issuing, however, only its local bill of lading, and charging local freight rates on such shipments, recognizing, as it always has, the shipper's right to send any freight to any point on its line, and have it delivered as the shipper might elect, but denying that in cases where freight was to be shipped to a point beyond its own line it could be compelled at all to issue its through bill of lading therefor, except at its option, and subject to such reasonable conditions as it might impose; that the rate shown in tariff of 50 1/2 cents is much lower than the combined local rates on each line would be, and these reduced rates can only be given by arrangements with the several carriers composing the through line, and cannot be made for any length of time, but are constantly changing to meet the necessities of the business. The defendant gives many reasons why it should be allowed to route freight, viz. solvency of connections; ability to handle freight promptly; willingness and ability to settle claims growing out of shipments promptly; selection of lines with a view of having them return defendant's cars from the East loaded, or reciprocity in business relations; a particular line may at any time become disabled or congested, so as to be unable to move freight promptly; defendant may be required to send its cars over lines which will not return them, or pay mileage, or return any business on them, while the line selected by defendant may do all this, and it should be left free to make its own selections and arrangements. The refusal to receive the 24 bales of cotton upon the distinct ground that the shipper did not have the right to select, and defendant could not be compelled, on through shipments beyond its line, to issue through bills of lading over the connecting carriers, is admitted. Defendant denies that it has done anything not authorized by law, or that it has violated any law; denies that there was any agreement at New Orleans touching the routing of cotton, or that, if there had been, it violated any law, state or national; denies that it has been guilty of discrimination against complainants, or Memphis as a market, or cotton as a product, or that it has ever permitted shippers to route cotton at Memphis or elsewhere. The averments of the bill in regard to repeated tenders of cotton by, irreparable loss and damage to, and discriminations against complainants are denied. In short, all the material averments are put in issue, and defendant insists that under the law it has the right to refuse to receive cotton, or anything else, and to refuse to issue its through bill of lading therefor beyond its own line, unless it may select the agencies by which it will be carried.

Considerable proof was taken in the case, and on final hearing the court below decreed "that the complainants are entitled to have their cotton accepted and received by the defendant, and transported over its lines and over the connecting lines of defendant, as designated in the bill herein, to Alexandria Virginia, and thence over the Pennsylvania Railroad to Jersey...