S.F. Cornelius & Co. v. Central of Georgia R. Co.

• Decision Date: 03 June 1915
• Docket Number: 772
• Citation: 13 Ala.App. 533,69 So. 331
• Court: Alabama Court of Appeals
• Parties: S.F. CORNELIUS & CO. v. CENTRAL OF GEORGIA R. CO.

69 So. 331

13 Ala.App. 533

S.F. CORNELIUS & CO. v. CENTRAL OF GEORGIA R. CO.

No. 772

Court of Appeals of Alabama

June 3, 1915

Appeal from Circuit Court, Jefferson County; E.C. Crow, Judge.

Action by the Central of Georgia Railroad Company against S.F Cornelius & Co., to recover undercharge for freight. Judgment for the plaintiff, and the defendant appeals. Affirmed.

The following is the agreed statement of facts:

"In the above-entitled cause, it is stipulated and agreed as follows: That on or about February 10, 1910, a shipment of oranges was made by H.T. Montgomery & Co., from Mango, Fla., to the defendant at Birmingham, Ala. That said car was delivered to the railroad company in Florida, and the contents thereof were not inspected by the railroad company. That the carrier's agent at Mango, Fla., received said car load of oranges billed as 300 boxes of oranges in bulk issued a bill of lading therefor to the shipper, and forwarded said car with a manibill upon which the freight was computed to be $138, the minimum freight on a car load of oranges in boxes. That as a matter of fact said oranges were not in boxes, but were in bulk, and the actual weight of the oranges in said car was 25,100 pounds, instead of the minimum weight of 24,000 pounds as estimated, and the published rate on said oranges in bulk was 69 cents per 100 pounds, so that the correct freight, according to the rate on file with the Interstate Commerce Commission, on said oranges in bulk from Mango, Fla., to Birmingham, Ala., was $173.19, and the difference between the rate charged on the manibill and paid by the consignee and the correct freight on said oranges was $35.19, the amount sued for. That said car load of oranges was consigned to the defendant at Birmingham under an agreement with H.T. Montgomery & Co. by which defendant was to pay the freight demanded, and sell the oranges for consignor, deducting his commission and returning the balance to consignor; and upon arrival the defendant paid the freight demanded by the plaintiff, and shown by the plaintiff's bill of lading, viz., $138 and took possession of said car load of oranges, and disposed of the same as agents for and on account of the shippers H.T. Montgomery & Co., without any knowledge or information as to the weight of the shipment, or that the rate of freight on said oranges had not been correctly computed and paid. That after such remittance and prior to the bringing of this suit, the plaintiff demanded of the defendant the payment of said sum of $35.19, the difference in freight on said oranges, which the defendant declined and refused to pay, referring the plaintiff to the shipper for any proper adjustment.

"It is agreed, subject to objection for immateriality that there is a custom prevailing in the territory involved and had been for a number of years prior to this shipment, to the effect that, in the event of undercharge by the railroad, on shipments consigned to commission men, the railroads on presenting the matter to the consignee or commission men, have been uniformly referred to the shipper and owner of the commodity, after the account between commission man and shipper has been closed, and have proceeded with the collection or adjustment of the matter direct with the shipper.

"It is further stipulated and agreed that if upon the foregoing statement of facts the court is of the opinion that the plaintiff is entitled to recover, a judgment shall be entered for the plaintiff for said sum of $35.19, with interest thereon from the 10th day of February, 1910; and if the court is of the opinion that the plaintiff is not entitled to recover, judgment shall be entered for the defendant, and the party against whom said judgment shall be entered will be taken to have formally excepted to the ruling of the court."

Forney Johnston and W.R.C. Cocke, both of Birmingham, for appellant.

London & Fitts, of Birmingham, for appellee.

THOMAS J.

The appeal is by defendant from a judgment of the lower court, sitting without a jury, and which was rendered against him in an action brought against him by plaintiff, the appellee railway company, to recover of him, the defendant, as the consignee of a certain shipment of goods, the difference in amount, which was $35.19, between the lawful freight rate ( Central of Ga. Ry. Co. v. Birmingham S. & B. Co., 9 Ala.App. 419, 64 So. 202) on such shipment, and the lesser rate which, at the time of and upon the delivery to the consignee of the shipment, the latter paid, and which the carrier then accepted by error or mistake as being the correct or lawful rate. The case was tried on an agreed statement of facts, which the reporter will set out, and which, at its conclusion, stipulated that:

"If, upon the foregoing statement of facts, the court is of opinion that the plaintiff is entitled to recover, a judgment shall be entered for the plaintiff for the sum of $35.19 with interest thereon from the 10th of February, 1910 [[which was done], or, if upon such facts the court is of opinion the plaintiff is not entitled to recover, judgment shall accordingly be entered for the defendant."

There was an exception by defendant to the judgment of the court for the plaintiff, and it is insisted by defendant's counsel here that the court erred in rendering such judgment because, as is contended by them, under the law applicable to the agreed statement of facts the judgment should have been for the defendant instead of for the plaintiff. The basis of the insistence is predicated upon the fact that the agreed statement of facts shows that the defendant, who was sued as the consignee of the mentioned shipment, was not the owner of the shipment, but that the consignor was the owner thereof, and that the latter made the shipment to the defendant consignee, who was a commission merchant, for him, the consignee, to sell on commission for the consignor, and to remit to the consignor the proceeds of sale after first deducting commissions for selling and the freight paid on the shipment.

In the case of Central of Ga. Ry. Co. v. Birmingham S. & B Co., 9 Ala.App. 419, 64 So. 202, we held that where the consignee was the owner of the shipment, the carrier might recover of him the freight under circumstances as here; and we now hold that, even though the consignee is not the owner of the shipment, the carrier may nevertheless recover, unless it...