Simpson v. Cent. Vermont Ry. Co.

• Decision Date: 04 October 1921
• Docket Number: No. 324.,324.
• Citation: 115 A. 299
• Parties: SIMPSON v. CENTRAL VERMONT RY. CO.
• Court: Vermont Supreme Court

115 A. 299

SIMPSON

v. CENTRAL VERMONT RY. CO.

No. 324.

Supreme Court of Vermont. Washington.

Oct. 4, 1921.

Exceptions from Washington County Court; Stanley C. Wilson, Judge.

Action by M. E. Simpson against the Central Vermont Railway Company. Verdict and judgment for plaintiff, and defendant brings exceptions. Affirmed.

Argued before WATSON, C. J., POWERS, TAYLOR, and MILES, JJ., and FISH, Superior. Judge.

Porter, Witters & Longmore, of St. Johnsbury, for plaintiff.

J. W. Redmond, of Newport, and Wm. R. McFeeters, of St. Albans, for defendant.

POWERS, J. The plaintiff was a faker at the Franklin county fair, held at Sheldon Junction in the fall of 1914. Her stock in trade consisted of cheap jewelry, canes, souvenirs, novelities, etc., and was transported from one fair to another in 9 large trunks and several express packages. The railroad station at Sheldon Junction is only a short distance from the fairground, and is operated jointly by the St. Johnsbury & Lake Champlain Railroad Company and the defendant, being in the charge at the time here material of Frank Belanger, as joint agent. He was also express agent, and probably telegraph operator. During the afternoon of September 4, the last day of the fair, Belanger went to the plaintiff's tent on the fairground to deliver to her an express package, and while there on that errand asked her when she was going away, and (as stated in the defendant's brief) "suggested that their goods should be packed and at the station that night to insure shipment in the morning." Later in the afternoon the goods were packed, and about 7 o'clock in the evening the 9 trunks and 11 packages were carted to the station. When the carter arrived there, he notified Belanger that he had brought "Simpson's stuff from the fairground," and was directed by him to leave it on the station platform. When the carter arrived with the second load, Belanger told Mr. Simpson, the plaintiff's husband and assistant, who came with it, to put the things on the platform, and that, after the trains had gone, they would put them in the waiting room—the only available place to house them. Simpson then purchased tickets of Belanger over the defendant's road to Northfield, Vt., his next stand, and after the departure of the last train, moved the trunks and packages into the station waiting room as directed. When this had been done, Simpson spoke to Belanger about checking the trunks to Northfield, but the latter replied that he could not stop to do it that night, as he had already worked over his lawful hours, but that the train did not leave until about 9 o'clock in the morning, and "we will have plenty of time to check them then." Accordingly, the trunks and packages were left in the station, where they burned up in a fire that destroyed the building before morning. This suit is brought to recover the value of the property so destroyed, and is based wholly upon the defendant's liability as a common carrier.

The defendant introduced in evidence certified copies of its special passenger tariff, No. 146—11, and a supplement thereto, and rested. It then filed a motion for a verdict, which was overruled, and an exception saved.

These "tariffs" were the "schedule of rates" specified in G. L. 5281, which requires a railroad company to "file with the Public Service Commission and keep on file in all railroad offices" schedules showing the rates charged for the transportation of persons or property over its lines, together with the charge for any services in connection with such transportation. This section also requires such company to post in its stations and offices notices that such schedules are on file therein, and may be seen on application. And the section further provides that the rates, tariffs, and charges "so scheduled and kept in such offices" shall not be increased except as therein specified. By G. L. 5290, a penalty is provided for violations of these provisions.

That these tariffis were duly filed with the Public Service Commission was not disputed; but there was no direct evidence that they were kept on file in the defendant's offices, or that the notices called for were posted as required.

The plaintiff says that, without compliance with these requirements, the schedules are of no validity or effect. The defendant insists that the thing that gives them vitality is the filing of them with the Commission, and that the other provisions of the statute are directory, merely; and though a failure to comply with them or either of them might subject a railroad company to the penalty prescribed, the binding force of the schedules would be unaffected thereby.

In support of its position, the defendant cites Berwind-White Coal Mining Co. v. Chicago & Erie R. Co., 235 U. S. 371, 35 Sup. Ct. 131, 59 L. Ed. 275, and other federal Supreme Court cases construing the Interstate Commerce Act (U. S. Comp. St. § 8563 et seq.). That act requires an interstate carrier to file with the Interstate Commerce Commission, "and print and keep open to public inspection," schedules of rates and charges. It also provides that copies "shall be kept posted in two public and conspicuous places" in its stations and offices. Section 8569. The cases referred to hold that the posting of these copies is neither a step in the publication of the rate nor a condition precedent to its legality, but is a provision to take effect after the rate has been legally established. This holding does not go quite far enough to be decisive of the point here. It does not touch the requirement of the federal statute that the schedules shall be kept "open to public inspection"—which corresponds to the requirement of our statute that schedules shall be kept on file in the railroad offices—and we are not advised that the Supreme Court has ever held that compliance with this provision is not essential to the validity of the rate. It was deemed of such importance in Kansas City Southern R. Co. v. Albers Commission Co., 223 U. S. 573, 32 Sup. Ct. 316, 56 L. Ed. 556, that it was proved; and in Texas & Pacific Ky. Co. v. Cisco Oil Mills, 204 U. S. 449, 27 Sup. Ct 358, 51 L. Ed. 562, the court says that—

"The filing of the schedule with the Commission and the furnishing by the railroad company of copies to its freight offices incontrovertibly evidenced that the tariff of rates contained in the schedule had been established and put in force. * * * "

This language is adopted, almost literally, by Chief Justice Rugg in New York Central, etc., Co. v. York & Whitney Co., 230 Mass. 206, 119 N. E. 855.

The cases cited by the defendant would be in point if the only question here was as to the effect of a failure to post the notices called for by our statute; but they shed little, if any, light upon the importance of that other requirement of our statute that the schedules shall be kept on file in the company's offices; and we shall get no help from that court on this question until they construe the provision of the federal act that the schedule shall be kept open to public inspection.

We think that a proper interpretation of G. L. 5281 requires us to hold that a railroad company must not only file its schedules with the Commission, but must also file them in its offices in order to establish the rates therein contained; and that, until both of these requirements are complied with, the schedules afford no protection to the company. Otherwise the shipper would be without any feasible means of ascertaining the rate which the law required him to pay. To be sure, the records of the Commission would be open to him, and very likely the Legislature could lawfully leave him to the cold comfort of that situation; but we prefer to think that the Legislature intended to afford him a fair chance to ascertain the lawful rate at the point of shipment. This view is strengthened by the provision of the statute requiring the agent on duty "in the office" to render assistance in securing information from and interpreting the schedules.

When the defendant rested,...